Benedict v. Higgins — 165 A.D. 611

Majority

p. 611

Matthew Benedict, Respondent, v. Arthur C. Higgins and Calista Higgins, as Administrators, etc., of Clark Higgins, Deceased, Appellants, Impleaded with William T. Austin, Sheriff of Delaware County, Defendant.

Third Department,

January 6, 1915.

Headnote

Judgment — exemption of real estate purchased with pension money from levy and sale — evidence — release of veteran from sale of property purchased with pension money—Code of Civil Procedure, section 1393, construed.

Action by a veteran to procure the release of property alleged to have been purchased by him with pension money from a sale by the sheriff under a judgment. Evidence examined, and held, to establish that the property in question was paid for by the plaintiff entirely from pension money;

That the certificate of sale should be vacated and declared void, and that the county clerk should be ordered to indorse upon the record of the judgment that it is not a lien upon the real property in question.

p. 612

Section 1398 of the Code of Civil Procedure, exempting from levy and sale by virtue of an execution the pension granted to a Civil war veteran, also exempts real estate purchased with pension money where such money has not been so mixed with other moneys as to lose its identity and should be liberally construed in favor of the veteran.

Appeal by the defendants, Arthur 0. Higgins and another, as administrators, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 26th day of December, 1913, upon the decision of the court after a trial before the court without a jury.

The judgment determined that certain real property of the plaintiff, described in the complaint herein, was exempt from sale under an execution because bought with pension money and canceled a sheriff’s certificate of sale as a cloud upon the title to such real property, and directed that the record of a judgment held by the appellants be modified by an indorsement to the effect that the same was not a lien upon such real property of the plaintiff, and awarded to the plaintiff costs against the appellants, amounting to the sum of $138.33.

Herbert C. Kibbe [Edmund B. Jenks of counsel], for the appellants.

Sewell & France [H. B. Sewell of counsel], for the respondent.

The plaintiff in this action is a veteran of the Civil war. In 1903 he began to draw a pension. On the 13th day of December, 1906, he entered into a contract for the purchase of the property in- question agreeing at that time to pay $10 a month, together with the interest at the rate of five per cent until the property should be paid for. At the time this contract of sale was entered into the plaintiff was drawing exactly $10 a month pension from the government. He paid down on the property, at the time the contract was made, $225. • The purchase price was $900. On November 19, 1910, the plaintiff had finished paying for the property and received a deed of the premises. At that time the total amount of pension money which he had received was $1,007.44. The plain

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tiff swears that, at the time he purchased, the property, he had kept all his pension money, which he had received prior to that time, entirely separate from his other money. He went into possession of the property at the date of the contract of sale and has continued in possession ever since. The real estate in question consists of a village lot with a dwelling and barn situate thereon and the property is located at Sidney Center, N. Y. The plaintiff has paid the taxes on his property and has made certain small repairs from time to time. Before he began to draw a pension a judgment was taken against him for the sum of $1,852.56. After the property was all paid for and the plaintiff received his deed, an execution was issued to the sheriff upon this judgment. The sheriff sold the real property in question at public auction and it was bid in by the judgment creditor for $2,000. Previous to the sale a written notice was served upon the sheriff by the plaintiff forbidding him to sell the property for the reason that it had been purchased with pension money, and was, therefore, exempt from levy and sale. The judgment herein orders that the levy and sale be set aside, and that the certificate of sale be vacated and declared void; and it declares that the judgment against the plaintiff does not constitute a lien upon the property in question; and the comity clerk is ordered to indorse upon the record of judgment these words: “This judgment is not a lien upon the real property described in the complaint in this action.” From this judgment an appeal is taken by the judgment creditor.

Section 1393 of the Code exempts from levy and sale by virtue of an execution the pension granted to this plaintiff. The language of the section, so far as it is material, reads: “The * * * pension or other reward heretofore or hereafter granted by the United States * * * for military or naval services * * * are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceeding.” This section of the Code has been many times construed to include real estate purchased with pension. (Yates County National Bank v. Carpenter, 119 N. Y. 550 ; Toole v. Board of Supervisors, 13 App. Div. 471 .) This proposition is not disputed by the defendants, but it

p. 614

is contended first that the evidence does not support the finding that the property in question was paid for entirely from pension money. We are, however, of the opinion that this finding is abundantly supported by the evidence. At the time the plaintiff made his final payment he had drawn exactly $1,007.44; the amount which he paid for the property, including interest, was $974.54. The plaintiff swears positively that every dollar of this purchase price and the interest was paid from his pension, and there is no attempt to dispute this positive declaration, welhcorroborated by the amount of pension which he had previously drawn, except certain little discrepancies twisted out of him on cross-examination. These are so insignificant that we do not deem it necessary to refer to them. The pensioner was seventy-four years old at the time of the trial; the cross-examination may have confused him a little. The courts should not refine in interpreting this statute or indulge in mathematical niceties in construing it. The broad spirit of gratitude which prompted the enactment of this law should control the courts in enforcing it.

The defendants further contend that the value of the property at the time of the levy and sale was greater than the amount of the pension which had been put into it. An attempt was made to prove' these facts by showing that the house had been somewhat improved by repairs and painting and otherwise. Of course it was the plaintiff’s duty to keep his house and property in repair, and unless additions or enlargements of such magnitude as to essentially and substantially increase the value of the property were made, this circumstance has no significance. Thé purchase price at the sheriff’s sale is pointed to as an indication of the increased value of the property; but the judgment creditor, himself, bid in the property at the sheriff’s sale, apparently without competition; therefore, this circumstance has no meaning. Two witnesses called by the defendants gave it as their opinion that the property was worth more than the amount of pension put into it; one witness placing the value at $1,600, and the other placing it at $1,800. But $900, the figure at which the property was sold to the plaintiff, seems to be a fair criterion. Considering all the evidence presented on the subject of value, the trial court was

p. 615

fully warranted in finding that the present value of the property is $1,000.

The defendants have argued at some length that if pension money he mingled with other money to the extent that it cannot be determined how much pension money has been actually used to purchase the real estate in question, in such a case the pensioner loses his rights under section 1393 of the Code. There is no doubt that this is the law, but no such condition presents itself here. Seldom is there an instance where the pension moneys have been kept apart so distinctly and carefully from other moneys as in this case. The evidence presented on this subject is entirely convincing.

The defendants further contend that, even if the judgment is to be upheld, the relief granted is too sweeping and broad and that the judgment appealed from should be modified by striking out the direction to the county clerk to indorse upon the record of judgment against the plaintiff these words: “This judgment is not a lien upon the real property described in the complaint in this action.” Is there any reason why such a modification should be made ? Let us see. What is a lien ? Bouvier’s Law Dictionary defines a lien as follows: “Ahold or claim which one person has upon the property of another as a security for some debt or charge. ” But the defendants have no hold or claim upon this property. They have a judgment against the plaintiff; but the only way they can get hold of this property under their judgment, or enforce any claim against it by virtue of their judgment, is by levy and sale. But this property is exempt from levy and sale by virtue of an execution; therefore, the judgment cannot be enforced. This property cannot be molested by any “legal proceeding” known to the law. That was the intent of the Legislature; that is the spirit of the statute. (Tyler v. Ballard, 31 Misc. Rep. 540 .) This pension was given to the old soldier by the United States government exclusively for his benefit, and the State law secures it to him, absolutely, for his own use. The statute holds it back inflexibly from the clutch of sharpers and schemers and from the reach of creditors. The judgment against the plaintiff is not and never was and never can be a lien upon this real property of the plaintiff, paid for with pension money, so long

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as the plaintiff continues to own it. If it is not a lien then it must not he permitted to stand on the records as a lien. No menace — false, misleading, meaningless and useless—should he allowed to hang as a cloud over the house of this veteran. Standing as it does upon the record, it constitutes a cloud. It hampers the plaintiff in his right to sell his property, for it is likely to create a doubt in the minds of would-be purchasers. It is unlawful and invalid in every respect and should be stricken from the records so far as it in any manner affects the real estate in question. A pensioner may invest his pension money wherever he pleases; he may put it into a bank and he may take it out again; he may put it into a farm and take it' out again; he may put it into a house and lot and take it out again; he may buy stocks, mortgages or other securities and afterwards sell them — all this he may do with perfect impunity. He need not be alert to hide his pension from his creditors, for the law holds back their hands. The law looks with solicitude upon the veterans of our wars, and wherever the pension of these veterans may be, or in whatever shape it may be, the law makes it immune against seizure by anybody under any circumstances or by virtue of any process. This, of course,, is on the condition that the pension be not so mixed with other moneys as to lose its identity.

The judgment should be affirmed, with costs. •

Judgment unanimously affirmed, with costs.

Cases cited

Yates County National Bank v. Carpenter 119 N. Y. 550 N.Y. 1890-03-18 p. 613
Tyler v. Ballard 31 Misc. Rep. 540 N.Y. Sup. Ct. p. 615