61 N.Y.S. 600 | N.Y. App. Div. | 1899
There are two branches of the appeal:
1. Brown and Mrs. Shaw, his assignee, contend that the lien of the judgments against the former has ceased from lapse of time,, and, hence, that the respondents are not entitled to the fund deposited with the chamberlain. Concededly, however, when the» partition suit was begun in 1886, and when, in. the- same year, the decree was entered, the sale was had, and the referee, in pursuance of the-terms of that decree, paid over to the chamberlain the sum received for Brown’s interest; all of those judgments were liens thereupon. This established the right of the judgment creditors. (Caswell v. Kemp, 41 Hun, 434.) In the case cited the judgment was still a lien upon the property when the partition suit was begun, but had ceased to be such before the trial. It was held, however, that
It seems clear, upon principle as well as authority, that the subsequent lapse of time did not defeat their rights. The contention is that the proceeds of Brown’s individual share, when brought into-court, were a substitute for his interest in the land; and that, as timben of a judgment upon real property (“ except as otherwise specially prescribed by law-”) ceases after ten years (Code Civ. Proc.. § 1251), so necessarily does the ben upon, the substitute. This contention overlooks two salient considerations: First, that the substitute is not real estate, though the law may sometimes give it that attribute in determining who is entitled to it; and, second, that the-decree confers a right to the moneys in court, and not a mere general lien thereon.
The money substitute is, in fact, personal property, and the statute relating to the ben of judgments upon real estate has no application. It certainly has no direct application, for it is silent with regard to any substitute for real property. And it cannot be made-applicable here by implication, or even by analogy, for the reason that an execution cannot be levied against moneys in custodialegis. Section 1252 provides that,/even after the expiration of the; ten, years, real estate may be levied upon under an execution, by-filing with the clerk of the county, a notice subscribed by the sheriff,, describing the judgment, the execution and the property levied upon. That notice must be recorded and indexed by the clerk; and the judgment binds and becomes a charge upon the right and title thus, levied upon, of the judgment debtor, from the time of recording and indexing. Rothing of this kind could be done in the case of
The reason why the statute makes no provision, in this particular ■connection, with regard to- a money substitute for real estate in partition is obviously because what were deemed proper provisions were made ■ in that part of the Code which relates to partition -actions. (§§ 1561-1565). Under these provisions, a mere general lien upon the moneys paid into court is not substituted for the general lien' of the judgment upon the real estate. The creditor’s lien is the subject of adjudication in-the partition action, and that -adjudication settles his right of lien and his sequential right to the "fund, subject to the incidental questions of extent and priority. He loses his lien if the adjudication goes against him. It was held in Dunham v. Minard (4 Paige, 442) that if the master, in the partition action, reports against the claim of any person having a lien by judgment or decree upon the shares of any of the parties, the ■claimant must except to the report in due season to preserve his lien upon the purchase money. The present statute does not materially différ in this respect from that which the chancellor was then ■considering. This case was cited in Halsted v. Halsted (55 N. Y. 445), where it was distinctly held that the referee in'partition is--authorized to take proof and pass upon the question of the validity ■of an incumbrance upon an undivided share of one of the parties. .Andrews, J., there, said: “ The inquiry as to the existence and amount of the lien involved the further question as to -its validity, if the party against whose share it was claimed to exist contested it. In case the master reported against the lien claimed, exception could be taken to the report when it was presented for confirmation.”
The learned judge added that “ The question of the' distribution ■of the proceeds of the sale ofi any undivided share of the premises, ■as between the owner and incumbrancers, is collateral to the main
As Brown was a party to the partition action, it is clear that the ■decree was an adjudication binding upon him; that the judgment -creditors had valid liens upon his share by virtue of their judgments. The statutory lien thus ripened, into an adjudicated right; "that is, an adjudicated right to the money" substitute for the realty, ¡and, consequently, the creditors’ application for payment was not to ■enforce a general, unadjudicated lien, but-simply to enforce the judgment in their favor.
This conclusion is in entire accord with the provisions of sections 1563, 1564 and 1565 of the Code of Civil Procedure. Under the first section, where it appears from the referee’s report that there is ¡an existing lien upon the share of a party, the interlocutory judgment must direct payment into court of the portion of the money •arising from the gale of the share. Under section 1564 provision is made for ascertaining the whole amount of the unsatisfied liens. Section 1565 then provides that when the whole amount of the unsatisfied liens has been ascertained, the court must “ order the portion of the money so paid into court to be distributed among the creditors diaving the liens according to the priority of each of them.” These ¡sections clearly indicate that the procedure provided for, as far as the existing lien adjudicated by the decree is concerned, is not an ■'Original application to declare and enforce such lien, but an application at the foot of the decree to enforce the judgment creditor’s .adjudicated right with respect thereto.
It is quite clear, therefore, that these judgment creditors have had a right throughout to the satisfaction of their adjudicated liens. 'The money in court was as much theirs under the partition decree •••as though it had been deposited in express terms “ to their use.”
The referee has found that Brown was not served with the sum-.mons in the actions brought by Ross and Merchant; but this cannot aid him. He was, as we have seen, a party to the partition .action, and the decree therein that these judgments were liens is Binding upon him and his assignee.
Upon the record before us, it is clear that the order, so far as it is. appealed from by Moses, Brown and Shaw, was correct; and it. should be affirmed, with ten dollars . costs and disbursements of the., appeal.
Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ... concurred. ,
Order affirmed, with ten dollars costs and disbursements.