Foot v. Dillaye

65 Barb. 521 | N.Y. Sup. Ct. | 1873

Hardin, J.

When the “Trustees of the Episcopal .¡Residence” became the purchasers and grantees of the lot upon James street, a certificate had been filed in the clerk’s office of Onondaga county, and an entry made in the docket of the judgment recovered by the plaintiffs, of “the fact” of the “reversal” of the judgment. That entry was in full force, and operated to “discharge and cancel such docket” of the judgment. The certificate of “that fact” of reversal was sufficient authority. to the clerk of Onondaga county to discharge and cancel the docket. (3 R. S. 641, 5th ed. Laws of 1844, ch. 104.)

It is only in virtue of the docket of the judgment that the plaintiffs had any authority to levy upon and advertise and sell the lot in question; that being discharged and cancelled at the time “the trustees” purchased and took a title, they acquired the fee free of the lien of the judgment. (47 N. Y. 157. 2 Barb. Ch. 165.) The statute quoted, and the authorities upon the effect of a purchase, at the time when the lien of a judgment is discharged, are so clearly applicable to the question presented as to require the court to hold that the lien of the judgment was not restored by the subsequent decision of the Court of Appeals reversing the decision of the General Term. (Jackson, v. Benedict, 13 John. 533. Taylor v. Rayney, 4 Hill, 619. King v. Harris, 34 N. Y. 330. S. C. ,so Barb. 471.)

It is said by Mtjllih, J., in the opinion delivered at General Term, that when a reversal of an order takes place, the reversal does not revive the lien of a judgment “for all purposes and against all persons;” and he then adds what is applicable to the position of the trustees here, viz: “But the bona fide purchasers and incumbrancers deal with property with notice and on the faith of the order vacating the judgment; in other words, they deal with the debtor’s property as if the judgment had never been a lien on it.” “They pay or advance money upon the property freed from the lien.of such judgment. Having thus acted, it would be a fraud upon them to revive the lien and give it a preference over their lien or title.” (30 Barb. 475.)

The learned counsel opposing this motion insists that the same effect should be given to the reversal of the order of the General Term, in its effect upon the lien of the judgment, as is given to the reversal of the General Term, upon the liability of the parties to an undertaking given upon the first appeal.

In this case, the statute declares that the lien shall “be discharged and cancelled.” It is free when the rights of the purchaser attach. But in the cases where the undertaking is revived, and the liability of the sureties revived, the parties are held to have covenanted, or stipulated, to abide by the final judgment upon appeal—to have made their undertaking to abide the finad judgment.

[Herkimer Special Term, September 2, 1873.

Hardin, Justice.]

That final judgment being adverse, they, by the very terms of their undertaking, are bound to pay. (Robinson v. Plimpton, 25 N. Y. 486. Gardner v. Barney, 24 How. 467.) The power of the court exists to control judgments and process, and may be summarily exercised to prevent the property of a bona fide purchaser from being sold.

The trustees purchased a title free of the lien of the judgment, and therefore the plaintiffs should be summarily and perpetually stayed from all attempts to sell the same upon the judgment. (Wilson v. Smith, 2 Code R. 18. Blodget v. Blodget, 42 How. 19.)

An order to that effect must be allowed.