Jackson ex dem. Potan v. Hoag

| N.Y. Sup. Ct. | May 15, 1810

Per Curiam.

As the lessor of the plaintiff was never taken, in the suit against the heirs and devisees of her father, the judgment and execution could not affect her separate estate, nor her person. She was a tenant in common with the other heirs, in the lands devised by her father; but her share of the estate could not be sold under that judgment. It was a separate, and not a joint estate. This is the restriction in the act^* (Laws, vol. 1. 353.) authorizing proceedings against joint debtors, when all are not taken; and, independent of this statute, a plaintiff cannot proceed against a debtor not taken, but by prosecuting him to outlawry. This is the course pursued when heirs in gavelkind are sued and not taken. (Dyer, 239. a. Postal’s Ent. 208. b.)

The right to proceed against several executors, where one only is taken, and to obtain judgment against all, is also founded on an English statute, which we have adopted. (Laws, vol. 1. 538.)^†

The judgment and execution in this case did not, therefore, authorize the sale of the share of the lessor, or of that of her sister, which she has since purchased, and consequently she is entitled to judgment for two third parts of the premises.

Judgment accordingly^

* 24 sess. o. 98, s. 13.

† 24 sess. c. 174, s. 11.