Caswell v. Camp — 1 N.Y. St. Rep. 568

Majority

p. 568

Caswell v. Camp et al.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886.)

Headnote

1. Judgment—A lien on seal estate for ten years and no longer— Code Procedure, § 382—Right of judgment-creditor to sell debt- or’s REAL ESTATE AFTER TEN YEARS.

The Code of Procedure, § 282, makes a judgment a lien upon lands for ten years and no longer. Biit although the lien cease, the creditor is not deprived of the right to sell his debtor’s real estate at any time while it is in his legal possession.

p. 569

% Same—Practice—When court will require all interest to be

SETTLED IN ONE ACTION.

In this action the judgments were liens at the time the-suit was commenced. The judgment-creditors were made parlies, and all the parties interested were before the court. Tnc action was for the purpose of setting apart to each party his share or interest. Held, that the interest of all must be determined with reference to their rights as they existed at the commencement of the action; that the judgment-creditors must enforce their claims in this action; that their liens were preserved although the action was continued beyond the ten year limit.

Appeal from interlocutory judgment.

Smith, Pierce & Sheldon, for plaintiff and appellant, Caswell.

W. A. Wolff, for defendant and appellant, Biglow Blue Stone Co.

Fisher & Voltz and W. B. Hurd, for respondents, Kemp et al.

By section 282 of the old Code judgments ceased to be a hen upon lands of the debtor at the expiration of ten years from the date of docketing in the county where the lands were situated. The Revised Statutes (part 3, chap. 6, title 4, art. 1, §§ 4, 5) were superseded by this section of the old Code. Evans v. Hill, 18 Hun, 464 .

These provisions of the Revised Statutes determined that a judgment should bind and be a charge upon the lands of the debtor, and that “from and after ten years from the time of the docketing * * * it shall cease to bind or be a charge * * * as against purchasers in good faith,” etc.

Section 282 of the Code determined the same thing, and is clearly intended as a substitute for the former, and the language of the Code, making the judgment a hen for ten years, and omitting the provisions of the Revised Statutes above mentioned, which limited the hen to ten years in respect to purchasers in good faith and subsequent incumbrancers, discloses an intention to make a judgment a hen upon lands for ten years and no longer. But although the hen ceases, it does not follow that the creditor is deprived of the right to sell his debtor’s real estate at any time while it is in his legal possession. Beard v. Smith, 35 N. Y. Sup. Ct. R., 51.

And in this action the judgments were hens at the time the suit was commenced, and the judgment-creditors were made parties, and the interests of ah must be determined with reference to their rights as they existed at the com

p. 570

mencement of the action. All the parties interested in the' property were before the court, and the action was for the purpose of setting apart to each party his share or interest, and it was proper that the judgment-creditors should enforce their claims in this action, and not resort to other remedies, and it was not necessary that they should save their rights.

Their liens were preserved although the action was continued beyond the ten year Emit. Any proceedings taken upon their judgments after the commencement of the action would have been taken subject to whatever judgment was rendered herein.

Interlocutory judgment modified so as to declare the judgment claims, and entitled to payment, according to their priority, out of the proceeds of sale, after the payment of the expenses of suit and the dower interest.

Dykman, J., concurs.