Higgins v. McConnell — 30 N.Y. St. Rep. 958

Majority

p. 958

Abel R. Higgins, Resp’t, v. Abigail McConnell, Impl’d, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 11, 1890.)

Headnote

1. Execution—Interest of purchaser in contract for land not subject TO SALE.

The interest of a purchaser in a contract for the sale of land is not subject to sale on execution after judgment against him in an action in which an attachment has been issued and proceedings taken, as in case of the levy of an attachment.

2. Same—Code Crv. Pro., § 645.

Section 645 of the Code was intended to extend the provisions of § 644 to all cases of alienable legal title or interest in lands, though not vested, and does not remove the restrictions imposed by §§ 644, 1253, nor change the rule that such an equitable interest was not subject to levy either by attachment or execution, and could be reached by a creditor only by proceedings in the nature of a creditor’s action.

Appeal from an interlocutory judgment, entered on the findings and decision of the court at special term, overruling a demurrer to the complaint.

De M. Page, for app’lt; J. F. Parlchurst, for resp’t.

The action was brought to determine conflicting claims of title to the interest of the purchaser in a contract for the purchase and sale of lands; and for specific performance of the ci ntract. The sufficiency of the complaint depends upon the question whether such interest is subject to sale on execution, after judgment against such purchaser in an action in which an attachment had been issued and proceedings taken thereon as in cnee of the levy of an attachment.

VV e regard the statute as conclusive against the theory of the complaint. Section 644 of the Code of Civil Procedure permits the levy of an attachment only upon property “ not exempt from levy and sale by virtue of an executionand § 1253 provides that “ the interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment and cannot be levied upon or sold by virtue of an execution issued upon a judgment.”

Counsel for the plaintiff, conceding that no lien is acquired upon the interest in question by the docketing of the judgment, merely, argues that, a lien having been previously acquired, by the way of an attachment, that lien may be enforced by sale on execution after judgment; and for the right to levy an attachment on such interest he relies upon § 645 of the same statute. That section provide^ that “ the real property, which may be levied upon by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant.”

This was a new provision, introduced by the Code of Civil Procedure, and was evidently intended, as indicated by the reviser’s note to the section, to extend the provisions of § 644 to all cases of alienable legal title or interest in lands, though not vested. It did not remove the restrictions imposed by §§ 644 and 1253, nor

p. 959

change the rule which existed under the Eevised Statutes and the Code of Civil Procedure, to the effect that the equitable interest in question was not subject to levy either by attachment or by execution and could be reached by a creditor only by proceedings in the nature of a creditor’s bill, after judgment and the return of an execution unsatisfied. Sage v. Cartwright, 9 N. Y., 49 ; 1 R. S., 744, § 4.

Por the reason stated we considered the plaintiff’s complaint radically defective and the demurrer well taken.

The interlocutory judgment should be reversed, the demurrer-allowed and judgment ordered for the defendant thereon, dismissing the complaint.

Interlocutory judgment reversed, the demurrer allowed and judgment ordered for the defendant, dismissing the complaint, with costs.

Macomber and Corlett, JJ., concur.