Van Camp v. Searle

The purpose of the action is the determination of the rights of the parties, other than the defendant Searle as sheriff, to the proceeds of the property of Benjamin F. Yan Camp. He was treated as an absconding debtor. And in more than twenty actions instituted against him warrants of attachment against his property were issued

The payment of the executions in favor of the defendants Blood is challenged for the alleged reason that their warrants of attachment had not the support of affidavits sufficient to justify their issue, and a like objection is made to the order for service of the summons by publication. The affidavits to obtain those attachments wer§ alike in their provisions, and while they stated that Van Camp had departed from this State with the intent to defraud his creditors and to avoid the service of a summons upon him, they failed to state any facts tending to support such charge, and were, therefore, insufficient to protect the attachments against a motion to vacate them.

But no such motion was made, and, as the money had been paid upon their judgments and executions in discharge of the lien, the question of the insufficiency of the affidavits is not, as against those parties, available to the appellants. (Code Civ. Proc. § 682; Woodmansee v. Rogers, 82 N. Y. 88 .)

As the summons in each of those actions was served by publication, the sufficiency of the affidavits was essential to bring the actions within the jurisdiction of the court, and if they did not come up to the statutory requirement in support of the order of publication the judgments were void, and the plaintiffs in them acquired no rights

The view taken is that the affidavits, upon which the orders of publication were founded, were such as to render the service of the: summons made in each of those cases effectual.

The objection urged against the application of the payment to the satisfaction of Bidelman’s execution relates only to the sufficiency of the affidavit upon which the attachment was issued. So far as the-defendants JBidelman, Chester and Rice are concerned, what has-been said about .the payment of the executions of the Bloods is. applicable to them, and in a like manner to the amount paid upon defendant Bruner’s execution.

As Coann is not a party to this action no inquiry is required about the payment of his execution. And so far as the processes which came to the hands of the sheriff were regular on their face, he was. justified in the execution of them. (Savacool v. Broughton, 5 Wend. 170 ; Sheldon v. Van Buskirk, 2 N. Y. 473 ; Woolsey v. Morris, 96 id. 315.)

The first executions which came to him upon the judgments of defendants Blood -were general executions provided for by section 1369 of the Code of Civil Procedure, and he paid them. After-wards, and before those defendants became parties to this action,, they refunded to defendant Searle the amount so paid them, and. thereupon special executions, according to the provisions of section 1370, were issued to him, and he paid to them thereon respectively the amounts of the executions. The former were irregular and the: latter were regular upon their face for the purpose of collection or payment from the proceeds of the attached property. The error1 was cured by the refunding of the money and the issue of the executions in proper form, and the satisfaction of them, although by expiration of the term of his office the defendant Searle had ceased to be-sheriff at the time the second executions were issued to him. (Code, § 706.)

The proceeds applicable to the discharge by payment of the liens-of their attachments may be deemed to have been held by him for that purpose until paid in satisfaction of the executions issued to-him, which were regular in form. (Lynch v. Crary, 52 N. Y. 184 .)

In that attachment it was recited that it appears by the affidavit “ that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors.” The statute provides that the warrant “ must briefly recite the ground of the attachment.” (Code Civ. Proc. § 641.)

The recital in the Bidelman attachment is not a statutory ground for the issue of such process. (Id. § 636.) In the affidavit upon which it was issued the ground stated for the application is that Van Camp had departed from this State, where he resided, with the intent to defraud his creditors, and some facts and circumstances .are there mentioned intended to support that allegation. And •although somewhat slender they are ■ such as to justify that conclusion and give support to the attachment. For that reason the .incomplete recital in the process is not fatal to its validity.

The execution issued upon the judgment recovered by-the defendant Bruner is not set out in the record, but the court found that it was issued in the form prescribed by section 1369 of the Code.

This was irregular, and as the provisions of section 1370 are Imperatively applicable to an execution issued upon a judgment recovered in an action in which an attachment is issued and levied .and the summons not personally served, the execution was void. (Place v. Riley, 98 N. Y. 1 .) The sheriff, therefore, was not justified in making payment upon that execution. The question as to the validity or regularity of the payments made upon the executions of defendants Bidelman and Bruner is not raised by exceptions of any of the appellants other than Keeler and Salisbury.

The real estate of Van Camp upon which attachments were levied was sold by virtue of executions on the 15th day of February, 1889.

And on the part of the appellants other than Keeler & Salisbury and the plaintiff it is insisted that the proceeds of the sale were .applicable only to the executions which were in the sheriff’s hands at the time of the first publication of his notice of sale and at the time the sale was made, and that in consequence the proceeds of .the sale were not applicable to the execution of the Cornelia Brown

By the notice first published October 29, 1888, the sheriff advertised the real estate for sale on the fifteenth of December following. In that notice he stated that by virtue of several executions issued out of the Supreme Court to him directed and delivered against the property of Benjamin F. Yan Camp, lie had seized all the right, titlb and interest which Yan Camp had in the real property described, on June 11, 1888, or at any time thereafter, and that he would expose such property for sale December 15, 1888, at the hour and place mentioned. By notice dated the latter day he stated that the sale was postponed until February 15, 1889. And by further or supplementary notice, dated December 18,1888, by him subscribed, the sheriff stated that by virtue of several attachments and executions issued out of the Supreme Court, wherein Orleans County National Bank and John G. Sawyer respectively were plaintiffs and Yan Camp defendant, he had levied upon the right, title and interest which Yan Camp had in the property described in the foregoing notice (before mentioned) on the 14th day of June, 1888, or at any time thereafter, and would sell the property on February 15, 1889, and then stated the amounts of such judgments of the bank and Sawyer. The property was sold on that day, and from the time of such postponement up to the time of the sale all of those notices were published together weekly.

By the certificate of sale the sheriff certified that he sold the property by virtue of executions issued on judgments recovered against Yan Camp by TIallock, Briggs, Buell, Bloss & Buell, Orleans County National Bank and Sawyer respectively for the amounts stated in the certificate. The attachments in behalf of those judgment creditors were issued to the sheriff in the order they are above named except those of the bank and Sawyer. They were issued to him at one and the same time.

If the proceeds of the sale should be applied only to the payment of the executions in the sheriff’s hands at the time of the sale they would thereby be fully satisfied. But such is not the judgment entered upon the direction of the trial court.

The distribution of the proceeds directed by the judgment was that they be applied to the payment of the Brown judgment and to

The execution before mentioned uj>on the Brown judgment was issued pursuant to an order granting leave to issue it, and on or about the 1st day of December, 1888, was delivered to the sheriff; ■and although the original notice of sale had then been published for some weeks, the notice of postponement with that following it, ¡as we have seen, was duly published and given by the sheriff for at least six weeks after the receipt by him of such execution. And there is no available objection founded upon the notice why the sale may not properly have been made by virtue of that execution. There was none in the fact that the sheriff stated in the notice that he had seized the right, title and interest which Van Camp had in the land on June 11, 1888. That was the day on which the first .attachment "was delivered to him: The lien of the Brown judgment was then prior to that of any of the attachments, and, so far as .■appears, there was no lien upon the premises between the time ■of the entry of such judgment and June 11, 1888.

The statute does not require that the execution U|:>on which a sale •of real property is made be specified in the notice or certificate of ■sale. (Code Civ. Proc. §§ 1434, 1438.) If, as it thus far appears, the sale may have been made by virtue of the Brown execution pursuant to the notice given by the sheriff of the sale, he was not at liberty to treat the sale as made only upon the other executions in his hands at the time óf the sale. It must, therefore, for aught that yet appears, be deemed to have been made by virtue of that execution as well as of those mentioned in the certificate of sale.

The executions of the attaching creditors Keeler & Salisbury and' .Kelsey, as administrator, etc., were on the day of and prior to the sale withdrawn from the sheriff, and immediately after the sale •executions upon their judgments were placed in his hands. It is urged on the part of the appellants other than the plaintiff and Keeler & Salisbury that those creditors, by withdrawing the executions, denied to themselves the right to have their judgments paid from the proceeds of the sale. This'is so unless the levy of them ¡attachments saves their right to share in such proceeds. The executions evidently were withdrawn to enable those creditors to redeem the property from the sale if they should be so advised. This they

But those whose executions were withdrawn were attaching creditors, and their attachment liens were prior to those of the other appellants, and, assuming that the premises were sold upon the execution issued upon the Brown judgment, which was a lien senior to that of any of the attachments, the sale was such as to vest title, when perfected, in the purchaser, free from the lien of them, and it would seem that the proceeds, for the purposes of the lien of the attachments, became the substitute for the property upon which they were levied, else there would be no remedy of those attaching creditors whose executions were not in the sheriff’s hands at the time of the sale, other than that of redemption. . This would practically deny to them any benefit of the lien of their attachments.

The pui’pose of the levy of an attachment upon real property is to create a lien as of that time, and such is the effect of it, so that when a judgment is recovered in the action, it, for the purpose of the execution of such lien, has relation to the time the attachment was levied, and when the property is sold by the sheriff upon an execution issued on a judgment which is a prior lien to that of the attachment, the lien of the latter is available in its relative order upon the proceeds of the sale, for the purpose of satisfying the judgment of the attaching creditor, or so much of it as the fund applicable to its payment will satisfy. This was the right of all those creditors in the present case whose attachments were effectually levied upon the real property which was sold, whether or not their executions were in the hands of the sheriff at the time of the sale. (Code Civ. Broc. § 641.) And, therefore, the creditors whose executions were withdrawn from him, as before mentioned, were not, by the withdrawal of them, prejudiced in their right to take payment from the fund in the order of the lien of their attachments. For the purpose of obtaining such payment executions, in behalf of all the creditors to whom 'payment was by the judgment herein directed to be made, were issued and delivered to the sheriff.

It is insisted that the judgment recovered by Cornelia Brown against Van Camp was not effectual to support the execution issued

They may be regarded as the equitable assignees of the judgment. (Haight v. Holcomb, 16 How. 160 .) And they had the right to make it available by process of execution to satisfy their lien charged upon it. (Code Civ. Proc. § 66; Martin v. Hawks, 15 Johns. 405 ; McGregor v. Comstock, 28 N. Y. 240 ; Goodrich v. McDonald, 112 id. 157.) Those attorneys did not consent that any set-off be made of the judgment to the prejudice of their lien, and it was preserved by the terms of the order. And no reason appears why the existence and extent of their lien was not properly established by evidence in this action in support of the execution in their behalf as found by the trial court.

It is urged by the learned counsel for the appellants bank and Savryer that the cause of the Kelsey action was not such as to permit the issue in it of the attachment in his behalf.

Prior to the time of the commencement of that action Benjamin E. Van Camp had been the executor of the last will and testament of Amos Kelsey, deceased, and, having failed to render his account as such, left the State under the circumstances which he did; his letters testamentary were by the surrogate revoked, and Adason Kelsey was appointed administrator with the will annexed, and thereupon the latter, as such administrator, commenced his action against Van Camp and caused an attachment therein to be issued against his property. The complaint was of considerable length, and by it, amongst other things, the plaintiff alleged that Van Camp, having property and money of the Kelsey estate in his hands, had

The ground of the attachment, as recited in it, was that the action was brought to recover “ a sum of money only as damages for a wrongful conversion of personal property as will more fully appear by the complaint, and that a cause of action exists against said defendant in favor of said plaintiff for the sum stated in said affidavit, * * * and that the defendant Benjamin E. Yan Camp has departed from the State of New York, where he has been a resident, and with the intent to cheat and defraud his creditors and to avoid the service of a summons upon himself.”

The complaint may import the purpose to recover against the defendant therein as for a conversion of personal property, and as such the action came within those cases in which the statute permits the issue of an attachment.'

But, in view of all the allegations of the complaint, such was not necessarily the nature of the action, nor was it of the recovery, as appears by the facts proven before the referee and by his report upon which the judgment was entered.

If, as insisted on the part of those appellants, the action was for an accounting as such, the plaintiff in it was not entitled to an attachment and none could issue, because it would not then have come within the provisions of the statute permitting the issue of such process. (Code Civ. Proc. § 635; Thorington v. Merrick, 101 N. Y. 5 ; Ackroyd v. Ackroyd, 20 How. 93 .)

And it has been held in Morse v. Smith ( 42 N. Y. St. Repr. 168 ) that unless special circumstances exist to permit an action therefor it will not be entertained to require an executor or administrator to render an account, as for such purpose the jurisdiction of the Surrogate’s Court is deemed exclusive (Code Civ. Proc. § 2472, subd. 3) and whether, in the absence of such circumstances, this court has jurisdiction for such purpose was questioned in Hard v. Ashley ( 117 N. Y. 606 ).

And no reason appears why he could not maintain an action to recover it. In Walton v. Walton (1 Keyes, 15; 4 Abb. Ct. App. Dec. 512 ; 2 Abb. N. S. 428) it was held that such an action was maintainable by an administrator de lonis non against the personal representative of an executor who had died without having fully administered the assets which came to him. And Judge HogebooM there remarked that an action may be brought by the plaintiff “ to recover the property against any person in possession of it; trover or replevin if it exist in specie, * * * or assumpsit or other appropriate action if it has been converted into money.”

The action was not necessarily one for an accounting, but, in view of what followed, may be treated as an action to recover the amount of money which in the execution of his trust Van Camp had derived from the assets which came to him as such executor, and which he was liable to pay over to the plaintiff, his successor. And it seems that, before the plaintiff in that action proceeded to judgment, Van Camp returned to this State and stipulated that on June 4, 1888, there was in his hands $1,840.31 in money belonging to the Amos Kelsey estate; that such money was subject to the payment of $622.62 to Keeler & Salisbury for legal services, etc. And he stipulated that judgment might be taken in the Kelsey action against him for $1,840.31, and interest from June 11, 1888, with costs. The judgment was accordingly entered December V, 1888. We are inclined to think that the action was well brought by Kelsey as administrator, etc., against Van Camp, and that the alleged cause of action was such as to permit an attachment to issue.

The liability of Van Camp to Keeler & Salisbury was personal notwithstanding the fact that the services were performed for him in his business as executor of Kelsey’s will. (Mygatt v. Wilcox, 1 Lans. 55 ; 45 N. Y. 306 ; Bowman v. Tallman, 2 Robt. 385.)

No reason now appears why the judgment to the extent of and for the costs included in it is not available to Keeler & Salisbury.

Such is the rule applicable to personal property subject to levy of executions. (Camp v. Chamberlain, 5 Den. 198 ; Peck v. Tif fany, 2 N. Y. 451 ; Pach v. Gilbert, 124 id. 612.) But as die-sheriff cannot take real property into bis custody, it is necessary, to constitute tbe levy of an attachment upon it, that be file with the-clerk of tbe county in which it is situated a notice of the attachment, stating tbe names of tbe ¿>arties to tbe action, tbe amount of the-plaintiff’s claim as stated in tbe process and a description of tbe property levied upon; tbe notice to be also subscribed by tbe plaintiff’s attorney. (Code Civ. Proc. § 649.) Tbe levy of an attachment is essential to make it available as a lien or to create by it security for payment of tbe judgment which may follow. (Anthony v. Wood, 96 N. Y. 180 ; Warner v. Fourth N. Bank, 115 id. 251 .)

And it is tbe duty of tbe sheriff to whom an attachment is delivered to immediately levy it upon the property, personal and real, of tbe defendant, sufficient to satisfy tbe demand if it can be found. (Code Civ. Proc. § 644.) lie is thus required to levy them, if there, be more than one, in the order in which they are received by him. And for his neglect to levy such process he may be liable to the plaintiff for the consequences. (Lewis v. Douglass, 53 Hun, 587 .)

In view of the duty imposed upon the officer in levying attachments, it was evidently contemplated by the statute that they would be levied in the order of their receipt by him, and for that reason there is no distinction in that respect made in its application to personal and real property, nor is our attention called to any case in.

Under the present statute we think such must be the rule of distribution of the proceeds of the sale of real property among the attaching creditors who proceed to judgment, and it seems alike reasonable and just. In that view the sale upon executions issued upon some or one of the judgments of the attaching creditors gives them no advantage over the other creditors, which the lien of their attachments does not give them. (Russell v. Gibbs, 5 Cow. 390 ; Rowe v. Richardson, 5 Barb. 385 .)

Since a .judgment is a lien upon the real property of a judgment debtor no levy of execution issued upon it is made on such property. But if a levy were necessary and the land charged only by it, as has been and probably yet is the case in some of the States, the rule applicable to levy and sale upon executions of real and personal property would be substantially the same. (Catlin v. Jackson, 8 Johns. 520 .)

The execution of the lien of an attachment is contingent upon the recovery of a judgment in the action in which it is issued.

Then it may be executed in the manner provided by the statute. (Code Civ. Proc. § 1370.). And as an actual levy is necessary to create the lien of an attachment upon property, it would seem that when •several of them are levied upon the same real property of the defendant, the order of preference or priority would be the same and founded upon the like reason as that applicable to levy of attachments on his personal property in the absence of any different rule upon the subject. There seems to be none. And, therefore, the lien of the attachments levied upon the real property of Van Camp ■are entitled to priority in the order which they were delivered to the sheriff. (Learned v. Vandenburgh, 7 How. 379 ; 8 id. 77; Yale v. Demick, 20 id. 430; Yale v. Matthews, 12 Abb. 379 .)

A question is raised about the disposition of the proceeds received by the sheriff of the Yan Camp accounts. As no attachment other than that of Keeler & Salisbury was levied upon them, it is not seen that any creditor other than they obtained any lien upon the accounts by them attached. Those upon which their attachment was levied produced only $130.04, which amount was sufficient to pay their judgment of $119.98, and they were entitled to its payment from the proceeds of the accounts upon which their attachment was levied. The assignment by Yan Camp to Keeler & Salisbury of the proceeds of other of his accounts collected by the sheriff was not effectual to transfer to them title to such proceeds to the prejudice of the attaching creditors. When payment of the accounts was made by the debtors to the sheriff, the amount so received by him became charged with the lien of the attachments in his hands in the order of the delivery of them to him.

In view of the circumstances, the conclusion of the trial court that the sheriff is not chargeable with any greater rate or amount of interest on the fund than that realized by him from it was fairly justified, and such conclusion is sustained. The defendant Orleans County National Bank, having recovered a judgment against Yan Camp September 14, 1888, by default upon the service of the summons by publication, afterwards, on November sixteenth, commenced against him an action upon the same claim by the personal service upon him in this State of the summons and complaint, and on December 1, 1888, recovered a judgment therein by default. It does not appear that any of the parties other than the judgment debtor could be prejudiced by the last-mentioned judgment. And whether or not it was by reason of the former judgment for the same cause rendered invalid is a question which none of the parties

If the first judgment was effectual to charge the defendant m personam, the other is useless. But if, from any cause, it is not so, the second judgment may properly stand.

Therefore, without considering the question upon the merits, the conclusion of the trial court that the judgment was void, as well as the judgment to that effect, is not sustained.

These views lead to the conclusion that the payment by the defendant Searle, as sheriff, to the defendant Bruner of ninety-six dollars and sixty-five cents was made without due authority, and he was not, justified in making it; that the defendants Keeler. & Salisbury were entitled to priority in payment upon their judgment of or from the proceeds amounting to $130.04: of the accounts upon which their attachment was levied, and that the second judgment above mentioned of the Orleans County National Bank against Yan Camp is treated as valid.

And so far as the judgment appealed from determines otherwise the judgment should be reversed, and in. other respects affirmed.

The judgment should be thus modified, without costs to any party.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from modified as indicated in the opinion, and, as so modified, affirmed, without costs of this appeal to either party; judgment to he settled by Bradley, J.