65 N.Y.S. 557 | N.Y. Sup. Ct. | 1900
Application of Ellis M. Santee for an order granting leave to issue an execution upon a judgment for $130.50, recovered in September, 1889, by plaintiff against defendant in the Supreme Court of this State, and in that month duly docketed in Tioga county, and in December, 1897, assigned to the applicant.
It is conceded that both pieces of real property were purchased wholly with pension moneys received by the defendant in or about the year 1889 as the widow of Gardner Ballard,, who was a soldier in the Union army, in the late Civil war. The applicant for the order, as assignee of the judgment, contends that the judgment became a lien upon both pieces of real property as soon as the title thereto vested in Celestia A. Ballard, the defendant, and that the judgment has ever since remained a lien, although, not enforcible by a sale under execution during the lifetime of the pensioner. Manifestly, the order cannot be granted unless the judgment is a lien upon the real property. I think it is not a lien and never was a lien. Section 1251 of the Code of Civil Procedure provides that, “ Except as otherwise specially prescribed by law, a judgment * * * binds, and is a charge upon, for ten years after filing the judgment-roll * * * the real property and chattels real in that county, which the judgment debtor has, at the time of so docketing it, or which he acquires at any time after-wards, and within the ten years.” Section 1380 continues a lien created as prescribed in section 1251, existing at the decedent’s death, for three years and six months after letters of administration have been duly granted upon the estate of the decedent. Hence, in case the judgment ever became a lien upon these two pieces of real estate, such lien existed at the time these proceedings were instituted as to the one-acre parcel owned by defendant at the time of her death.
Section 1393 provides that a pension hereafter granted by the United States for military services is exempt from levy and sale by virtue of an execution, except that real property purchased with the proceeds of a pension so granted, but owned by the pensioner or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. I think the exemption provided by section 1393 is one of the exceptions
The decision in Matter of Winans,- 5 Dem. 138, cited by the
It may be added that, as to the twenty-two-acre parcel, the judgment, having been obtained more than ten years before the making of this application, could in no event be a lien upon the twenty-two-acre parcel conveyed by Celestia Ballard to Antoniette Dim-mick in 1891.
The application must be denied, with costs.
Application denied, with costs.