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Lansing v. Vischer

1 Cow. 431 Court N.Y. Sup. Ct. English

Contents

Majority

p. 431
Lansing and others against Vischer and others.

Headnote

forAJ,“^®nt partition, is ^ovto^f ^he fast section of cevning judgis a lien on toyears^only. Where a defendant in partition, made a tQ sell his share notice^of thj and a-the costs; and R. afterwards to the another, for a sideration,°°n" without notice execution issued years after the wJs^Md’that the assignee was a bona fide purchaser, and protected judgment,^aithough he did get a* deed Jj™ the defondant, until after execuration issued.
On the 22c? of April, 1808, a judgment in partition was perfected and docketed in this cause, against Vischer and two others, by which a part of certain lands were adjudged in severalty to Vischer the defendant and two others, and their shares of the costs were adjudged to the plaintiffs, to be levied and made of their shares of the lands respectively. In May or June last, with VischePs consent, a fi. fa. issued for the costs, upon which the share of Vischer was levied upon, and advertised for sale. About the time of the par-1 . , , , tition, Vischer contracted m writing and for a valuable consideration, to sell his share to one Randall, who bad notice of the lien and agreed to pay these costs—in 1809, Ran-doll assigned this contract to Rosevelt, for a valuable consideration, paid. In August last, Vischer conveyed these lands to Rosevelt.
Hopkins, on an affidavit oí Rosevelt,
that at the time of his contract with Randall and paying the consideration therefor, he had no notice that the premises were subject to a lien for the costs, moved to set aside the fi. fa. on the ground that this judgment had ceased to be a lien, within the first proviso of the first section of the act concerning judgments and executions,(1 R. L. 500,) 10 years having elapsed between the time of entering judgment and issuing the excCUtioil.
S. S. Lush, contra,
. t # insisted, that the execution having issued before the conveyance, the judgment and execution at Ihat time being known to Rosevelt, he was not a bona fide purchaser, within the statute and was, therefore, not pro- ' tccted by it, '

The lien is gone. Rosevelt purchased for

p. 432
a valuable consideration without notice, and is a bona fide pUrcjjaserj within the meaning of the act.

Motion granted.