In re the Estate of Hazard — 56 N.Y. St. Rep. 82

Majority

p. 82

In the Matter of the Estate of Sarah Lawrence Hazard, Deceased.

(Supreme Court, General Term, First Department,

Filed November 17, 1893.)

Headnote

Judgments—Priority of lien.

Though several judgments were docketed at different dates, their liens attach to the after acquired property of the debtor simultaneously on the-date of acquisition.

Application by the American Surety Company of New York for distribution to a number of claimants of the surplus money arising from the foreclosure of mortgages on real estate of Sarah Lawrence Hazard, deceased. The petitioner appeals from- the decree entered on this application.

John J. Crawford, for app’lt; Lockwood & Mill, for resp’t John E. Caswell; John D. Taylor, for resp’t Le Grand S. Cholwell; Norwood & Coggeshall, for resp’ts Sylvester Y. L’Hommedieu and Eeginald A Lawrence.

We might affirm the decree appealed from upon the opinion of Surrogate Eansom in the court below, were it not for the fact that in such opinion he seems to lay too much stress upon adjudications in other states. Such adjudications can throw very little, if .any, light upon the construction of our statutes, as there is almost always some variation in language which may very well change the rule of interpretation. When we consider the language of our statute, we fail to see where there is any provision for, or any evidence of an intention to provide for, a priority of liens of judgments upon after-acquired property. Judgments are a lien upon property, because of the provisions of the statute, and, unless there is, some provision granting priority, none can exist. The provisions of our statute regulating liens of judgments are those contained in §§ 1250 and 1251 of the Code of Civil Procedure. Section 1250 provides that:

“ A judgment required to be docketed, as prescribed in this article, neither affects real property or chattels real, nor is entitled to a preference, until the judgment roll is filed, and the judgment docketed.”

And § 1251 provides that:

“Except as otherwise specially prescribed by law, a judgment hereafter rendered, 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 the ten years. ”

Now it is urged upon the part of the appellant that there is no distinction made by the statute between property held at the time and after-acquired property; and that as no different rule is prescribed as to the duration of the lien between property owned at the time of the docketing of the judgment and after-acquired prop

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erty, such lien being for ten years after the filing of the judgment roll, etc., these words apply to both classes of property; and, if the lien commences in the one case from the time of the filing of the judgment roll, it commences from that time In the other as well. And it is urged that, there being an express declaration that the lien is to continue for ten years, it commences at the time of the filing of the judgment roll and docketing of the judgment in respect to after-acquired property, as well as to that owned at the time. That this construction cannot prevail seems to be manifest when we consider the wording of the statute. The words of the statute are “ binds, and is a charge upon; ” that is, upon filing the judgment roll and docketing the judgment, such judgment at once binds, and is a charge upon, the debtor’s real estate. But it cannot at once bind and be a charge upon what he does not own, and the binding and charging can only take place when the debtor acquires the property; and then the binding and charging of all the judgments must occur simultaneously, because it is the one act of acqusition which then enables the judgments to bind and charge, and not the several acts of filing the judgment rolls and docketing the judgments. It is difficult to see how it is possible for a lien to attach to a thing which does not exist The lien of a judgment attaches to the ownership of the property. As ordinarily expressed, however, it is stated that the judgment binds the property ; but it is clear that it is intended in all such expressions to hold that it is a lien upon the ownership of the property, and that is all The codifiers, in their zeal, by changing the languange, to add confusion to conditions which were plain before, have seen fit to change the language of the Revised Statutes without any avowed intention of making any change in its provisions. In this respect it seems to us that they have infused uncertainty where it did not exist before, as they have frequently succeeded in doing in other instances. The provisions of the Revised Statutes (volume 2, p. 359, § 3) are as follows: “All judgments hereafter rendered in any court of record shall bind, and be a charge upon, the lands, tenements, real estate and chattels real of every person against whom any such judgment shall be rendered which such person may own at the time of docketing such judgment, or which such person shall acquire at any time thereafter, and such real estate and chattels real shall be subject to be sold upon execution to be issued upon such judgment. ’’

Here the language is, “ shall bind, and be a charge upon, lands,” etc., “ which such person may have at the time of docketing such judgment, of which such person shall acquire at any time thereafter ; ” the language indicating futurity in the attaching of the lien, “ shall bind the lands,” etc., “which such person shall acquire at any time thereafter.” Bind when? Clearly when acquired, and not before. The next section (§ 4) provides that, from and after ten years from the time of docketing such judgment, it shall cease to bind, or be a charge upon, any such property, clearly showing that there was no intention or idea that a lien could exist against after-acquired property for any period of ten years, as is claimed from the present provisions of the Code. It seems to us that the

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whole idea pervading the provisions of the Code-under1 sansideration is that these judgments go into operation- as- against any property which the judgment debtor may hold an acquire-daring ten years from the filing of the judgment-roll, bat until- title is acquired it seems to be clear that no lien can attach. As»already -suggested, it is the acquisition of the title which- enables the-lien -to attach; and the liens of all prior judgments necessarily attach ■at one time, and there can be no priority between them... The -decree should be affirmed, with one bill of costs; to-the- rsspand•ents. All concur.