Atlas Refining Co. v. Smith

It appearing that the judgments have not been paid, and no cause being shown why the executions should not issue, other than a denial of power on the part of the court to grant the motion, this appeal presents a question of law only. By the Revised Statutes (2 Rev. St. p. 359, §§ 3, 4), a judgment remained a lien upon real property, as against the defendant, his heirs and devisees,, for the period of 20 years, after which time payment was presumed;, but a judgment ceased to be a lien after 10 years from the docketing, thereof as against subsequent incumbrancers by mortgage, judgment,, decree, or otherwise, and bona fide purchasers, even though the incumbrance was taken or acquired, or purchase made, with full knowledge of the existence of the prior judgment, but without fraudulent intent to prevent the payment thereof. Scott v. Howard, 3 Barb. 319 ; Roe v. Swart, 5 Cow. 294 ; Ex parte Iron Co., 7 Cow. 540 -554; Tufts’ Adm’r v. Tufts, 18 Wend. 621 ; Little v. Harvey, 9 Wend. 157 ; Pettit v. Shepherd, 5 Paige, 493. Prior to the enactment of the Code,, if the judgment debtor died after judgment, and before execution issued, an execution could not be issued until the expiration of one-year after his death. 2 Rev. St. 368, § 27. In such case an execution could then only be had against the personal representatives,, heirs, or terre tenants after the return of a writ of scire facias. Wood v. Morehouse, 45 N. Y. 368 , 374, 375; Bank v. Van Brunt, 61 Barb. 361 , 49 N. Y. 160 -163. Section 376 of the Code of Procedure provided1 that, where the judgment debtor died after the recovery of the judgment, his heirs, devisees, or legatees, or the tenants of real property-owned by him “and affected by the judgment,” might, after the expiration of three years from the time of granting letters testamentary- or of administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in-

“Notwithstanding the death of a party after judgment, execution thereon against any property, lands, tenements, real estate or chattels real upon which such judgment shall be a lien, either at law or In equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution cannot he issued within a year after the death of the defendant, nor in any case unless upon permission granted by the surrogate of the county who has jurisdiction to grant administration of letters testamentary on the estate of the deceased judgment debtor, which surrogate may, on sufficient cause shown, make an order granting permission to issue such execution as aforesaid.”

'Section 376 of the Code of Procedure, requiring leave of the court in which the judgment was docketed, on notice to the heirs, devisees or legatees, or personal representatives, to issue execution where the judgment debtor died after the recovery of judgment, and said act of 1850, requiring like consent of the surrogate’s court, remained the law governing the issue of executions in such cases, as to all judgments rendered prior to the enactment of the Code of Civil Procedure, and it was immaterial to which court an application was first made. Bank v. Van Brunt, supra; Wallace v. Swinton, 64 N. Y. 188 . Section 282 of the Code of Procedure provided for the docketing of judgments to conform to the new practice, but left the extent of the lien and the manner of enforcing the same to be determined by the Revised Statutes (Throop’s note to section 1252, Code Civ. Proe.; In re Hallock, 29 N. Y. Supp. 555 ); but the legislature of 1851 amended this section by providing that a judgment, upon being duly docketed, “shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where it was rendered.” Such was the state of the statutory law on these questions when the first part of the Code of Civil Procedure was enacted. Section 1251 of the Code of Civil Procedure, as originally enacted, provided as follows:.

“Except as otherwise specially prescribed by law, a judgment, hereafter ren dered, which is docketed in a county clerk’s office, as prescribed in this article, binds, and is a charge upon, for ten years after filing the judgment roll, and no longer, the real property and chattels real, in that county, which the judgment debtor has, at the time of so docketing it, or which he acquires at any time afterwards, and within ten years.”

Section 1252, as originally enacted, provided as follows:

“When ten years after filing the judgment roll have expired, real property or a chattel real, which the judgment debtor, or real property which a person, deriving his right or title thereto, as the heir or devisee of the judgment debtor, then has, in any county, may he levied upon, by virtue of an execution against property, issued to the sheriff of that county, upon a judgment hereafter rendered, by filing, with the clerk of that county, a notice, subscribed by the sheriff, describing the judgment, the execution, and the property levied upon; and,

if the interest levied upon is that of an heir or devisee, specifying that fact, and the name of the heir or devisee. The notice must be recorded and indexed by the clerk, as a notice of the pendency of an action. For that purpose, the judgment debtor, or his heir or devisee, named in the notice, is regarded as a party to an action. The judgment binds, and becomes a charge upon, the right and title thus levied upon, of the judgment debtor, or of his heir or devisee, as the case may be, only from the time of recording and indexing the notice, and until the execution is set aside, or returned.”

Neither of these sections has been since amended,

Throop, in his note to section 1252, says that a doubt existed as to whether the provision of the Revised Statutes continuing the lien of a judgment for 20 years, as against the defendant, his heirs and devisees, was repealed by implication by said amendment of 1851 to section 282 of the Code of Procedure, and, if so, as to whether the lien of a judgment could be extended by redoclceting it. He states that for these reasons it was deemed necessary to replace the former provisions by these two sections,—the first limiting the lien in all cases to 10 years after docketing the judgment, in accordance with the apparent meaning of said amendment to the Code; and the second supplying the casus omissus by providing a mode .which enables a judgment creditor to proceed against real property after the lapse of the 10 years. In his note in the appendix to sections 1251 and 1252 of the Code he says that section 1252 was designed "to enable a creditor, after the lapse of ten years, to bind and reach the real property of the judgment debtor, or of an heir or devisee, by issuing an execution, and filing a notice similar to a notice of the pendency of an action.”

At common law, a judgment was not a lien upon real property. Consequently a judgment creditor only acquired such lien as is given by the statute. The execution authorized by section 1252 during the life of the judgment, and after its lien period has expired, is a new special mode of levying an execution upon land, manifestly designed to revive and continue the right conferred by the Revised Statutes, but in a different manner. The lien created thereby commences from the time the notice therein provided for is indexed and recorded, and the execution must require a sale of the right and title of the judgment debtor, his heirs or devisees, as the case may be, existing at that time, and not at the time of the original docketing of the judgment. Garczynski v. Russell, 75 Hun, 497 , 27 N. Y. Supp. 465 ; Evans v. Hill, 18 Hun, 464 ; Bank v. Quackenbush, 39 N. Y. Supp. 1126 . It will be observed that the legislature, by the language employed in this section, has clearly shown its intention to confer upon the judgment creditor the right, after the expiration of the 10 years, to enforce the judgment against the real property and chattels real of a judgment debtor, and, in case of his death, against such property in the hands of his heirs and devisees, in any county to the sheriff of which the execution is issued, and it is not limited to property on which the judgment has been a lien.

Section 1379, as originally enacted, provided as follows:

“An execution to collect a sum of money cannot be issued, against the property of a judgment debtor, who has died since the entry of the judgment, except as prescribed in the next two sections.”

Section 1380, as originally enacted, provided as follows:

“After the expiration of one year from the death of a party, against, whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may he enforced hy execution, against any property upon which it is a lien, with like effect, as if the judgment debtor was still living. But such an execution shall not be issued, unless an order, granting leave to issue it, is procured from the court, from which the execution is to be issued, and a decree, to the same effect,, is procured from a surrogate’s court of the state, which has duly granted letters testamentary or letters of administration, upon the estate of the deceased judgment debtor.”

The reviser states that this section was prepared from said chapter 295 of the Laws of I860, but it is evident that it is also a reenactment of part of section 376 of the Code of Procedure. This section has been since amended many times by adding provisions thereto, otherwise limiting the time of granting permission to issue executions, and continuing liens existing at the time of the death of the judgment debtor, and providing for cases where real estate has béen conveyed to the judgment debtor in fraud of his creditors; but such amendments are n’ot material to this case, for the reason that the greatest limitation upon the time of issuing an execution prescribed by any of such amendments expired before this application was made. It is contended by the respondent that this section only authorizes the issue of an execution in cases where the judgment is a lien. The effect of such a construction would be to nullify ¿11 the provisions of section 1252. Section 1380 must be interpreted, not literally, but liberally, with a view to making it harmonize with section 1252. It is manifest that the legislature intended to authorize the issue of an execution on a judgment after the lien thereof had expired, notwithstanding the death of the judgment debtor; but in order that such an execution might not be issued prematurely, or for an excessive amount, or where the judgment had been paid, or any other legal objection existed, it was provided that the consent of the court of law having charge of the judgment should be obtained; and, in order that the execution might not be unnecessarily issued, where the personal assets of the decedent might be sufficient to pay the judgment, or where the interests of the decedent’s estate or of other creditors might require the suspension of the right to issue the execution for a period, or that the premises be sold otherwise, the consent of the surrogate’s court was also required. Bank v. Van Brunt, supra; Wallace v. Swinton, 64 N. Y. 188 . To carry into effect the clear intent of the legislature, which the court has implied authority to do (Beard v. Sinnott, 35 Super. Ct. Rep. 51), section 1380 must yield to the construction that the requirement, as a prerequisite to' granting the order, that the judgment shall be an existing lien, only applies when 10 years have not elapsed since it was docketed, that being the only case where it could be a lien. A careful analysis of these statutory provisions shows that this construction will not do

We are of opinion that the petitioner has shown a legal right to the issue of the execution, so far as the court in which the judgment is docketed is concerned. It follows that the order appealed from