Baskin v. . Huntington

29 N.E. 310, 130 N.Y. 313, 41 N.Y. St. Rep. 635, 85 Sickels 313, 1891 N.Y. LEXIS 1272

Opinion

Follett, Ch. J.

By statute a judgment becomes a lien on the land of a judgment debtor which is within the county wherein the judgment is docketed (2 R. S. 359, § 3, which is superseded by Code C. P. § 1251), and a mode for enforcing the lien after the death of the judgment debtor is provided. (Code C. P. §§ 1252, 1379, 1380, 1381.) Section 1380 provides : “After the expiration of one year from the death of a. party against whom a final judgment for a sum pf money, or directing the payment of a siun of money, is rendered, the judgment may be enforced by execution against any property upon which it- is a lien, with like effect, as if the judgment. debtor was still living.” This provision was taken from section one, chapter 295 of the Laws of 1850, so that it was apart of the statute law of this state when the obligation upon which the judgment was recovered was given. Ho distinction is made in the statute between judgments recovered on sole, on joint, or on joint and several contracts; nor is there any exemption of the land of a deceased surety contracting jointly and severally with a principal, and against both of whom a judgment has been recovered. The judgment was recovered, and William R. Baskin died before section 758 of the Code of Civil Procedure took effect.

The rule that a judgment recovered against two or more joint contractors may be enforced against the land of one of the debtors who has died, and upon which it has become a lien, is recognized or declared in the following cases: Trethewy v. Ackland (2 Saund. 48, see note); Reed v. Garvin (7 S. & R. 354); Commonwealth v. Mateer (16 id. 416); Stiles v. Brook (1 Pa. St. 215).

In the case last cited it was said: “ How, that one of two joint debtors dying, is thereby discharged, both ifi person and estate, at law from the payment of a debt, is too well established to be controverted, unless the debt became a lien on his estate in his life-time, in which latter case the property on which the lien existed may be taken to satisfy the debt.”

We are not called upon to determine whether, the judgment which the defendants are seeking to enforce against the realty on which it became a lien can be collected out of the other property of the deceased surety, for no such attempt has been made. It is unfortunate that the record does not show whether this execution was issued pursuant to sections 1379, 1380 and 1381 of the Code of Civil Procedure, and also that it does not disclose whether the sheriff had begun to execute the execution by the collection of money thereon, as provided by sections 184 and 186 of the Code Civ. Pro. The record does not enable us to determine whether the execution is a legal one, nor, if it is, whether the defendant, ex-Sheriff Bell, is in a position to make a valid sale by virtue of it. Whether a purchaser can acquire title under a sale made under this process by the ex-sheriff, must be left undetermined until the question arises and the necessary facts are before the court

The order should be affirmed and judgment absolute rendered against the appellants, with costs.

All concur.

Order affirmed and judgment accordingly.