Hulbert v. Hulbert

This a proceeding in an action of partition for the distribution of the proceeds of a' sale of real property. On March 7th, 1904, St. Paul’s Church of the village of Waterloo, N. Y., docketed a judgment for $906.84 against Fred Hulbert. On April 21st, 1904, judgments for $2,830.57 and $2,351.71 respectively were docketed against said Hulbert by the defendant Story now deceased. All of these judgments were filed and docketed in the office of the clerk of Seneca county. At the time these judgments were docketed Hulbert was without property. In 1910, on the death of his father, Hulbert inherited an undivided one-third interest in the real estate which it was sought to partition in this action. On November 24th, 1913, pursuant to leave granted by the court, the St. Paul’s Church issued an execution on its judgment against the property of said Hulbert. On February 6th, 1914, the sheriff of Seneca county sold Hulbert’s undivided interest in said real estate to one Bacon who is a defendant herein, for the sum of $1,437.10 and issued to him a sheriff’s certificate of sale which he now holds. The present action for partition or sale was not commenced until after the execution of the St. Paul’s Church had been placed in the hands of the sheriff. The interest of the defendant Hulbert in said premises was sold in the partition action March 28th, 1914, for $1,753,38, which sum has been paid into the court subject to" its further order. The proceeds of this sale are insuf

“ After lands were subjected to sale on execution, and before the judgment was made a lien, (see per Chancellor Lansing in Catlinsr. Jackson, 8 John. R. 546), the sale of lands and of goods on execution stood substantially upon the same footing, and a levy or seizure was necessary in the one case as well as in the other. But when the judgment was afterwards made a lien on the land, there was no longer any reason for requiring a levy before the sheriff proceeded to advertise and sell. The seizure was already made when the execution came to his hands. Lawyers and judges have still continued to speak of the supposed necessity of a levy upon land, without adverting to the fact that the reason for the rule had entirely ceased. But as there is nothing but dicta upon the point, we feel ourselves at liberty to say, that since the judgment has been made a lien upon the land, no formal levy or seizure by virtue of the execution is necessary.”

A good deal of confusion has arisen and the decisions seem not to be in harmony as to the status of the judgment lien. This condition seems to have arisen because of the statutory changes that have been made. A review of the changes which the law upon this subject has undergone will tend to a better understanding of the existing rule which we are called upon to apply to this case. At common law when a judgment has been rendered for a debt the sheriff was directed to cause the sum needed to-be made {fieri facias) out of the goods and chattels of the defendant or levied {livari facias)' out of his goods and the fruits of his land, but the land itself was not subject to be taken in satisfaction of the debt. “ Our common law,” say Pollock & Maitland in their History of English Law, “ will not seize his land and sell it or deliver it to the creditor; seignorial claims and family claims have prevented men from treating land as an available asset for the payment of debts.” (Vol. 2 [2d ed.], p. 596.) In 1285,

Prior to 1132 no judicial salé of land could he- made

By the act of 1774 (Laws of the Colony of New York, 1769-1775, vol. 5, p. 637) provision was made for docketing the judgment in the name of the person against whom the judgment was entered, and it was declared that a judgment “not Docketed and entered in the Books” should not affect lands as to purchasers or mortgagees, or have any preference against heirs, executors or administrators. In 1787 (Laws of New York, 1785-1788, vol. 2, ch. 56, p. 467) and in 1801 (Laws of

By virtue of the statutory changes which have been made in relation to this subject a judgment upon being filed and docketed becomes a lien upon the real estate of the debtor. It is no longer necessary that an execution should be issued upon the judgment in order to cause the judgment to become a lien upon real estate. Adams v. Dyer (supra), decided in 1811, and Waterman v. Haskin, decided in 1814, had under consideration judgments

Of course it is true that if the judgment actually became a lien upon the land it can make no difference whether it is a hen by virtue of express statutory enactment or by necessary implication from other language used in the statute. It is, however, a significant fact that at the time Adams v. Dyer (supra) and Waterman v. Haskin (supra) were decided it was an open and ■undecided question in this state whether the lien attached upon the filing of the judgment or whether subsequent action by way of execution must be taken in order to cause the lien to attach. It was not until more than fifteen years after these cases were decided that it was first held in Koning v. Bayard (supra) that under earlier statutes by implication the judgment became a lien from the date of filing. Even after this decision, as Judge Bronson pointed out in Wood v. Colvin (supra), the effect of the statutory provision was not fully appreciated by judges and lawyers. The fact that this question was undetermined when Adams v. Dyer (supra) and Waterman v. Haskin (supra) were decided, and that it was not determined until subsequent statutory enactments had made the original legislative purpose clear, explains why the court in these cases assumed that the rule prevailing as to the acquisition of a lien upon personal property also prevailed as to real property and accorded a

Whatever the legal effect of the early statutes may have been it is perfectly clear that since 1813 the judgment itself is a lien upon the real property of the debtor. The legal effect of this statutory rule is that from the moment a judgment is duly filed and docketed legal rights in the real estate of the debtor attach. In the case now under consideration the liens of the three judgments attached simultaneously to the property of Hulbert upon his acquisition of the interest derived from his father. By virtue of the statute they were at that time equal liens entitled to share pro rata in the proceeds of the debtor’s property. Such being the case, how can it be held that the issuing of the execution and the advertising by the sheriff — acts which would be an idle ceremony—should give a preference to the creditor ? Once a lien is acquired it is a right which cannot be lost by the performance of an unnecessary act by another creditor. With as much reason could it be held that as between two mortgagees holding mortgages of equal rank, the one who showed the greatest diligence in commencing an action of foreclosure should acquire a preference over the other. Under the terms of the statute the judgments of the appellants became liens on the real property of Hulbert of equal rank with the lien of the judgment of the St. Paul’s Church. The lien of these judgments of the appellants, having attached, did

Under the circumstances disclosed, and in view of the fact that Adams v. Dyer (supra) and Waterman v. Haskin (supra) declare a rule contrary to our existing statute we feel compelled to hold that these decisions are no longer controlling upon us and that we should give effect to the rule declared in the statute.

The order appealed from should be modified by directing that the fund now deposited in court should be distributed pro rata between the three judgments, and as so modified the order should be affirmed, without costs to either party.

(dissenting). I dissent from the judgment about to be rendered in this case. I think it is in conflict with the established law of this state as it has existed for more than a century. It squarely overrules two decisions of our old Supreme Court, the doctrine of which has been adopted in other states and approved by the Supreme Court of the United States; and this without any change in conditions which in my opinion suffices to justify such action.

In the present case, three judgments stood duly docketed in Seneca county against the defendant Hulbert, when, in 1910, upon the death of his father he inherited a one-third interest in the real estate sought to be partitioned in this action. The three judgments thus simultaneously became liens upon the property so acquired by the judgment debtor. (Matter of Hazard, 73 Hun, 22 ; affd, on opinion below, 141 N. Y. 586 .) Prior to the commencement of the partition suit, and pursuant to leave of court, duly g’ranted, an execution against the property of the defendant Hulbert had been issued to the

The courts below have held, without dissent, that the judgment in favor of St. Paul’s Church had thus become entitled to priority.

The leading cases relied upon as authority for this decision—which it is now proposed to reverse — are Adams v. Dyer ( 8 Johns. 347 ) and Waterman v. Has-kin ( 11 Johns. 228 ), both decided by the old Supreme Court, the former in 1811, when Kent was chief justice and the latter in 1814 when Kent had become chancellor and had been succeeded as chief justice by Smith Thompson, who subsequently became an associate justice of the Supreme Court of the United States. With them on the bench were such men as Ambrose Spencer, William W. Van Ness and Joseph C. Yates; so that the judicial ability of the court can liardly be questioned by New York lawyers. They decided that where judgments were equal as to the date of the lien, the issue of execution upon one of the judgments, the advertisement of the lands for sale thereunder and the sale thereof by the sheriff entitled the plaintiff in that judgment to have his claim first satisfied out of the property. In the second case it was held to be enough to establish the priority of such a judgment that the sheriff who received the execution thereon had begun to execute the process first; he 1 ‘thereby turned the scale of equal right and gained a priority by his vigilance.” (Waterman v. Haskin, supra.)

“If two or more judgments, on account of their contemporaneous rendition or docketing, or from any other cause, are equally entitled to precedence as liens on the real estate of the judgment debtor, this equality may be destroyed, in order to give precedence to the lien holder who first attempts to subject any specific real estate to the payment of his lien.” (2 Freeman on Judgments [4th ed.], section 374.)

In Rorer on Judicial Sales, section 703, the author states the rule thus: “If several judgment creditors have judgments of equal date, and their judgments are in law all liens on the real estate of the same defendant, the one that levies thereon first obtains priority.”

In the American and English Encyclopaedia of Law (2d ed., vol. 17, p. 796) we find: “It maybe laid down as a general rule that where liens of judgment are equal, one judgment creditor may acquire apriority over another by superior vigilance in executing his judgment. Thus in some cases it, has been held that when judgments in favor of different persons and against the same defendant are rendered or recorded on the same day, the judgment creditor first issuing execution and levying upon the debtor’s property acquires a prior right to satisfaction. And the same rule has been applied to judgments rendered at the same term where Jby statute such judgments are made equal liens on the defendant’s real estate.”

I make these quotations simply to show that the doctrine of priority by execution where the judgment liens are equal is not a peculiarity of Hew York jurisprudence. I will cite a few cases from other jurisdictions in which it has been adopted and applied.

To the same effect is Smith v. Lind ( 29 Ill. 24 ) where the court said: “While the lien was made equal, diligence was left to its reward. Under the general law the lien of judgments is equal, but the vigilant creditor can acquire a preference in the payment of his judgment by

In Bruce v. Vogel ( 38 Mo. 100 , 106) the Supreme Court of Missouri followed the rule in Adams v. Dyer (supra), saying: “ While the statute makes the liens equal, it does not deprive a party of any advantage he may gain hy the exercise of superior diligence. If one creditor who is exactly equal to another as regards liens, hy energy, perseverance and diligence, discovers property whereon to levy and make his money, justice demands that he shall reap the fruits of his industry. He may have gone to great labor and expense in investigating records and ferreting out and bringing to light property out of which to satisfy his execution; and to allow another person who had slept on his rights, and neither encountered labor or furnished money, to stand on an equality with him, would be inequitable. ‘ Vigilantibus, non dormientibus, jura subveniunt.’ The laws assist those who are vigilant, not those who sleep over their rights. We are well satisfied, on principle, that where judgment liens are equal, one judgment creditor can get priority over another by his superior vigilance and watchfulness. The execution issued on the judgment rendered in favor of Brown was fairly entitled to priority, as it was first placed in the hands of the officer, and the levy and sale were made under it; and the money could not be diverted from it and applied to others subsequently issued, and under which there was neither levy nor sale.”

In Bliss v. Watkins ( 16 Ala. 229 ), decided in 1849, the Supreme Court of Alabama said: “It seems to he well settled in Hew York, where judgments constitute a lien upon land, that where two judgments are rendered on the same day, although neither judgment creditor has the preference as a lien, yet if one of the creditors first take

In Iowa it is held that where judgments are entered on the same day, and become liens against the real estate of the judgment debtor, the judgment debtor who first issues execution and sells, obtains a preference (Lippen cott, Johnson & Co. v. Wilson, 40 Iowa, 425 ), but the courts of that state make a distinction as to after-acquired property. It is held that under such circumstances a different rule prevails and that the issuance of execution and the sale do not give a preference. No reason for the distinction is stated except that the two cases do not come within the same rule. (Kisterson v. Tate, 94 Iowa, 665 .) I am unable to perceive any difference in principle.

This review of the development of the rule asserted in the cases of Adams v. Dyer (supra) and Waterman v. Haskin (supra) indicates that it is rather firmly imbedded in our general jurisprudence. On what ground is it proposed to overrule these time-honored authorities, the doctrine of which appears now for the first time to be questioned in this state ? As I understand the prevailing-opinion it is simply because the judgments under consideration in the Adams and Waterman cases were docketed prior to the enactment of chapter 50 of the Revised Laws of 1813 which contained the first express declara

If a judgment actually is a lien upon land I cannot see what difference it can possibly make whether it has become a lien by reason of an express statutory declaration to that effect or by reason of necessary implication from other language used in the statute. If, as was virtually held in the case last cited, the declaration in the Revised Laws of 1813 merely expressed what had been necessarily implied before, I cannot comprehend how the enactment of the later statute can be regarded as furnishing any basis for the distinction made in the prevailing opinion.

One of the main purposes for which this court exists is

For these reasons I dissent and vote for the affirmance of the final order appealed from-without modification.

Chase, Collin and Hogan, JJ., concur with Sea-bury, J.; Cuddeback and Pound, JJ., concur with Willard Bartlett, Ch. J.

Order modified, etc.