Moore v. Duffy — 26 N.Y.S. 340

Majority

p. 340

(74 Hun, 78.)

MOORE v. DUFFY, Sheriff, et al.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Execution Sale—Redemption.

The appointment of a receiver in. supplementary proceedings vests only a qualified title to the debtor’s property in the receiver for the security of plaintiff’s-judgment, and therefore a grantee of land which had been sold under execution against the judgment debtor before the appointment of the receiver may redeem from such execution sale, though he received his deed from the judgment debtor after the appointment of the receiver..

Appeal from special term, Westchester county.

Action by Michael Moore against J. Duffy, as sheriff of the county of Westchester, Patrick Farrell, and Margaret Farrell, his wife, and Patrick Costello, to procure an adjudication that a deed from Patrick Farrell and Margaret, his wife, to Patrick Costello was null and void, and that the certificate of redemption given by defendant Duffy, as sheriff, to Patrick Costello, was null and void, and that said Duffy, as sheriff, execute and deliver to plaintiff, his heirs and assigns, his deed of the land mentioned in the certificate of redemption which had been sold under execution in favor of plaintiff and against defendant Farrell, and had been redeemed by defendant Cos-

p. 341

tello. Defendant Duffy answered, and the other defendants demurred to the complaint. The demurrers were sustained, and plaintiff appeals.

Affirmed.

It appeared that on May 10, 1886, plaintiff recovered a judgment in the Westchester county court against defendant Patrick Farrell for $500.06. The execution was duly issued to the sheriff of Westchester county on June 21, 1886, and was levied on certain land of defendant Farrell. The land was, on October 4, 1886, sold under the execution, and was pm-chased by plaintiff for $30.03, and a certificate of sale was given to him by the sheriff. On November 5, 1886, an order was made for the examination of defendant Patrick Farrell in supplementary proceedings. The order contained the usual clause forbidding any transfer or a disposition of property belonging to the judgment debtor not exempt by law from execution until further order in the premises. On November 10, 1886, an order was made appointing a receiver of said Farrell’s property, and also contained the restraining clause. On December 8, 1886, defendant Patrick Farrell and his wife executed to defendant Costello, in consideration of one dollar, a warranty deed of the premises which had been sold under execution. On December 14, 1886, said Costello obtained from the sheriff a certificate of redemption of the premises.

Argued before BARNARD, P. J., and PRATT, J.

Frederick W. Sherman, for appellant.

F. M. Thompson, for respondents Margaret and Patrick Farrell.

L. C. & W. P. Platt, for respondent Patrick Costello.

The title of the judgment debtor vested in the receiver on filing his appointment in the proper office, but it was a qualified title in the nature of a security for the plaintiff in the judgment. As the case contains nothing to show the title of the receiver has ceased, we must treat it as in force. The title vested in the receiver, being qualified and limited, as stated above, did not exhaust the title of the judgment debtor. Subject to the right of the receiver to resort to the land to pay the judgment, the title remained in the judgment debtor, and the conveyance to Costello transferred to him the title, subject to the claim of the receiver. He was not a stranger to the title, and his redemption was valid, and nullified the sale, and the certificate issued thereunder. The sheriff correctly refused to execute a deed to Moore. The receiver is a necessary party to any action brought to apply the land to the payment of the judgment. So, should Costello seek to discharge the land from the lien of the judgment, the receiver would be a necessary party. The demurrer was properly sustained, and the judgment must be affirmed, with costs.