Geller v. Hoyt

7 How. Pr. 265 | N.Y. Sup. Ct. | 1852

Mitchell, Justice.

It is objected to the judgment held by Blydenburgh, that it was not a lien as against a subsequent judgment creditor, be.cause it was not docketed so as to give the true name of the defendant. The Christian and surnames were given correctly, and these, for some purposes, constitute the whole name, and afterwards the error in the letter T, which ia not a name, but only an initial of a middle name, was corrected by order of the court, by subtituting the initial 'I' in place of 'T' in the docket here. The judgment was right and needed no opinion; and as to lands here, it was immaterial the docket was in Albany; a transcript is to be made from the judgment 1840, p. 334. § 26), not an erroneous docket. The judges in the first district have power to make orders as if. they were in court; and although the venue was laid in Albany any Supreme Court Justice had jurisdiction to hear the motion and make the order, although if objection were made, he should not hear the motion; the order when made is the order of the Supreme Court. It is said that the order affected third persons; the answer was given in Chichester vs. Candee (3 Cow. 39, 56) ^ that “ all amendments may affect, more or less third persons;” but if justice requires that they should be made, that objection will not prevent their being made; still the court would save the right of bona fide purchasers, and incumbrances for a new and valuable consideration: a judgment creditor for an antecedent debt is not in this class. Then what were the rights of Bloomingdale before Tyler got his order for the examination of Smith, and what rights did Tyler acquire by that order? Assuming the most that is contended for, that order gave no greater right to Tyler than if Smith had then executed an assignment to him; that is, it passed to Tyler all Smith’s title in any personal property , or rights of action which he had, subject to any equities or rights which other persons had in such property.

Before that order, Bloomingdale had, by virtue of his judgment, a lien on Smith’s real estate, and on that alone. Cobb had, by virtue of his mortgage, a prior lien on the same real estate to the extent of $1000, but had also a lien on the two notes for the same $1000. Cobb then had two securities for his debt and Bloomingdale had only one of those securities. Bloomingdale had, therefore, an equity to insist that Cobb should pay himself out of the security on which Bloomingdale had no lien, namely, the notes, and leave the other security, the land, to be resorted to by Bloomingdale alone. Smith’s title to the notes was subject to this equitable right in favor of Bloomingdale, and when the order was made against Smith enjoining him from assigning his property, he had no right in the notes except subject to this equity in favor of Bloomingdale, and he could pass no right to Tyler except subject to that right. The surplus, therefore, must be considered as passing to Bloomingdale, under the judgment in his favor, or to his assignee.

As the difficulties arose from the omission of Bloomingdale, or those acting for him, and there has been no unfair litigation, the costs of both parties on the reference should be paid out of the fund.