Adams v. Dyer

8 Johns. 347

• Court: New York Supreme Court
• Decided: August 15, 1811
• Status: Published

Opinion

Per Curiam.

The judgments in these cases were signed and filed on the same day, and even if the court were at liberty (of which they very much doubt, when they compare and consider the several provisions in our laws on the subject) to inquire into the fractional parts of the day, in order to see which record was first filed, the affidavits exhibited leave the point doubtful, as to the precise time of the day in which the rolls were filed, or which was, in fact, prior in time. We must then consider the judgments equal, as to the date of the lien, and the next question is, whether any priority hath been subsequently acquired. If one creditor first sells the lands under his judgment, he gains a preference, and is entitled to have his judgment first satisfied out of the proceeds of the sale. . It would be analogous to the case mentioned in the books, of several judgments of the same term, in which one of the judgment creditors first extends the lands, and is thereby entitled to be first satisfied. (Gilbert on Executions, 55. The Attorney-General v. Andrea, Hardres, 23.) And has not the plaintiff, who first sued out his execution, actually gained that preference ? His execution was some weeks prior, and under it the lands were regularly advertised according to law, and sold in pursuance of such advertisement. The last execution was not issued and delivered to the sheriff, until about three weeks before the sale, and the sale was not made under that execution. The statute forbids lands to be sold by virtue of any execution without six weeks’ notice, and the case states that the lands, were sold, and the moneys paid under the first execution. Perhaps, the mere act of delivery of the execution to the sheriff, did not gain a preference as to the lands, but by the act of the sheriffs in making advertisement of the lands for sale, the first execution was begun to be executed. Here was an act by which priority, in some respects, was gained. There was priority as to the time of sale, and that priority could not be defeated by the second execution.

The first execution is, therefore, under the circumstances of this case, entitled to preference, and must be first satisfied.