Gilman v. Tucker

Headnote

Execution—Sale—Validity.

Where an action is begun by attachment of the property of defendant on the ground of his non-residence the execution on-judgment in plaintiff’s favor must recite the attachment, and require the sheriff to satisfy the judgment out of (1) the personal property attached, (3j the personal property unattached, (3) the real property attached, and (4) real property not attached, as provided by Code Civil Proc. N.Y. § 1370; and where the execution directs the sheriff to satisfy the judgment out of defendant’s property generally, as if there had been no attachment, the purchaser at the execution sale acquires no title.

Appeal from special term.

Action by Cornelia Gilman against Preble Tucker to compel the determination of a claim to real property under Code Civil Proc. § 1638. The following is the substance of the finding of facts at special term: Plaintiff acquired the land in question in 1864, and has been in possession ever since. On May 20, 1884, an action was brought against her and one Andrew F. Smythe by one Augustus Prentice to recover $1,621.98. On the same day an attachment was issued against the property of defendants in that action on the ground of their non-residence. This attachment was levied on May 22, 1884, on the property in question. Defendants appeared generally in that action, and on August 7, 1884, Prentice recovered a judgment against them by default. On FTovember 25, 1884, execution was issued on said judgment, which execution failed to recite the attachment, and required the sheriff to satisfy the judgment in the same manner as if no attachment had.ever been issued, instead of requiring him to sell (1) the personal property attached, (2) the personal property not attached, (3) the real property attached, and (4) the real property not attached; as required by Code Civil Proc. FT. Y. § 1370. On the sale under the execution the property in question was bid in by Prentice for $1,900.64. On March 1, 1886, one Mary FT. P. Tucker .recovered a judgment against Cornelia Gilman, plaintiff herein, in the supreme court for the county of New York, and this judgment was afterwards assigned to Preble Tucker, '.defendant in this action. By virtue of this assignment defendant, Preble Tucker, redeemed the land in question from Prentice, who .had acquired the same, at the execution sale. Subsequently, on appeal to the general term of the supreme court, the judgment recovered -by Mary N. P. Tucker against Cornelia Gilman, the plaintiff herein, and assigned to Preble Tucker, was reversed, and in all things set aside. Cornelia Gilman then instituted the present action against Preble Tucker. At the special term the following opinion was delivered by Trtjax, ,T.: “At one time the plaintiff was the .owner of the property described in the complaint, but the defendant claims she was divested of that title by a certain deed made by the sheriff of the city and county of New York, as sheriff, to the defendant. The plaintiff claims that such deed was void. I think that is settled by the case of Place v. Biley, 98 N. Y. 1 , that said deed is void. That case also determines that under a void process no title can be acquired, but the defendant, by reason of

said deed, claimed title adverse to that of plaintiff. This action thus comes within section 1638 of Code of Civil Procedure. Judgment is ordered for plaintiff, with costs.” From a judgment entered in accordance with this opinion defendant appeals.. For prior litigation between the same parties, see 7 FT. Y. Supp. 682, 11 FT. Y. Supp. 555, and 24FT.E. Rep. 302.