Darling v. Littlejohn — 35 N.Y. St. Rep. 516

Majority

p. 516

Ann Francis M. D. Darling, Pl’ff., v. Isabelle Townsend Littlejohn, Def't.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Judgment—Lien—Limitation.

To save the lien of a judgment against bona fide purchasers and incumbrancers,not only must execution issue, hut the sale must take place within 1he ten years, unless restained. The mere levy of execution will not extend the lien beyond the ten years.

Submission of controversy without action.

On the 26th day of June, 1880, Samuel B. Parsons, together with the other owners of the lands in question, joined in the execution of a full covenant warranty deed of a gore of land about two feet wide at one end, and running nearly to a point at the other,, and about 180 feet in length, “ on the northerly side of Washington street, in the village of Flushing, between Bowne avenue and. Union street, bounded southerly by Washington street; westerly by land of James Valentine; northerly by land of Joseph F. Darling,” the party of the second part thereto, “ and easterly by land of Charles, B. Peet, being described on the Village Assessment Map as Block 152, Lot 14.” This-deed was recorded on the 29th day of July, 1880, in Queens county clerk’s office in liber 563 of deeds, at page 197.

Joseph F. Darling, the grantee in said deed, died seized of the-said premises, having previously made his will, which has been ■'duly admitted to probate by the surrogate of Queens county,, wherein he devised the premises in question to this plaintiff, and named her as sole executrix thereof, and her accounts as suck executrix have been duly judicially settled before said surrogate.

This plaintiff entered into an agreement with the defendant whereby she agreed to sell to her the above described lands, and a large tract adjoining the same on the north, which is accessible from the street only across the above described premises, for the aggregate sum of $4,500, and has offered to comply with that agreement by the delivery of a full covenant warranty deed for the premises covered by said agreement; but the defendant has-refused to accept the conveyance, claiming that the title is defective by reason of the following facts, and demands to be released' from her contract of purchase: On the 11th day of April, 1878, John Higgins and Alonzo Grarretson obtained a judgment in the supreme court in Queens county against Samuel B.. Parsons for $1,674.16, which judgment was docketed April 11, 1878, in Queens county, New York.

At the date of docketing said judgment the said Samuel B. Parsons was the owner of one undivided twelfth part of the tract of land above described.

On the 10th day of April, 1888, execution was issued on said judgment to the sheriff of Queens county two days before the lien of said judgment upon the interest of the said Samuel B. Parsons in said land expired by statutory limitation.

On the 24th day of July, 1888, the said sheriff claims to have

p. 517

sold the interest of the said Samuel B. Parsons in said premises by virtue of said execution, and issued to Mary Higgins his certificate of such sale, and after the expiration of fifteen months from the day of said sale issued to her his deed, which are now matters of record in the Queens county clerk’s office. A printed copy of the sheriff’s notice of sale was affixed to the record of notices of mortgage sales by advertisement in the office of the clerk of Queens county oh the 9th day of June, 1888. Ho Us pendens or other notice of claim under said judgment was filed or recorded in said clerk’s office between the date of docketing said judgment and the recording of the sheriff’s certificate of sale made on the 24th day of July, 1888.

The plaintiff claims that as the lien of the said judgment had expired by statutory limitation before the sale thereunder by the sheriff, said sale did not affect her title to the premises in question, and demands judgment requiring the defendant to complete her purchase and for a specific performance of said contract of purchase by the defendant.

This is a submission of controversy, and the only question really involved is, whether the lien of a judgment can be extended for more than ten years by the levy of an execution within the ten years from docketing the judgment as against a purchaser for value.

To save the lien as against bona fide purchasers and incumbrancers, not only must execution issue, but the sale must take place within the ten years, unless restrained by injunction or writ of error. Little v. Harvey, 9 Wend., 157 ; Roe v. Swart, 5 Cowen, 294; Tufts, admr., v. Tufts, 18 Wend., 621 ; Scott v. Howard, 3 Barb., 319 .

In this case the judgment was docketed April 11, 1878, execution issued on the 10th of April, 1888, and the sale made on July 24, 1888. Ho Us pendens or other notice of claim under the judgment was filed or recorded in the county clerk’s office between the date of docketing said judgment and the recording of the sheriff’s notice of sale on the 24th of July, 1888, except the sheriff’s notice of sale was affixed to the record of mortgage sales by advertisement on the 9th of June, 1888.

The property was sold by the judgment debtor on the 26th of June, 1880, to a bona fide purchaser for value, who afterwards died. The premises were devised to the plaintiff, who entered into an agreement to sell the property to the defendant herein, who objects to the title on the ground that the said sale on execution is a cloud upon the title.

The plaintiff claims that the lien of said judgment had expired by statutory limitation before the sale thereunder by the sheriff, and, therefore, the sale did not affect the title.

We think the contention of the plaintiff is right, and the defendant must, therefore, perform her contract for the purchase of the property.

Barnard, P. J., and Dykman, J., concur.