Corey v. Cornelius

1 Barb. Ch. 571, 1846 N.Y. LEXIS 301

Opinion

The Chancellor.

Upon a careful examination of the answer in this case, I am satisfied the appellant did not intend to state positively that he was never served with process, or with a copy of the declaration in the suit in the supreme court. It is not necessary, therefore, to consider the question whether it is competent for the defendant, upon a creditor’s bill filed in this court, to question the validity of the judgment, or the right of the attorney to appear for him in the court at law. Upon principle, however, I think the remedy of the defendant, if any, is by an application to the supreme court to set aside the judgment; or by an action against the attorney who has appeared for the defendant in that suit without authority, if such appearance would have the effect to make the proceedings in that suit regular without the service of process. If the judgment is to be considered as valid in this court, I do not understand the answer to contain a denial that the whole amount for which it was given is still due and unpaid. And the defendant is not in a situation to avail himself of the alleged offset, against the complainant, upon this motion to dissolve the injunction. The defendant himself cannot know whether the complainant was guilty of any breach of professional duty in not applying the $100 in settling the claim of Zule. The fact that Zule claimed and actually recovered a sum much beyond the $100, in-that suit, exclusive of the costs, is sufficient to raise a presumption that he would not have accepted the sum which the defendant says was left with the attorney to pay the claim. And the fact that the attorney after-wards claimed to be the owner of and. actually sold the note which the defendant says he gave to Zule upon the settlement with him, is no evidence that the attorney came into the possession of that note wrongfully, and without a full consideration paid to the holder thereof. It becomes necessary, therefore, to inquire whether the complainant was in a situation to file a creditor’s bill upon either of the judgments mentioned in the pleadings and proofs in this cause.

The 39th section of the act of 1831, to abolish imprisonment for debt and to punish fraudulent debtors, (Laws of 1831, p. 405,) declares that a judgment, before a justice, in a suit commenced by attachment, where the defendant is not personally ' served with process and does not appear, shall be only presumptive evidence of indebtedness, in any suit that may be brought thereon; and may be repelled by the defendant. The same section also declares that the execution issued upon such judgment shall not be levied upon any other property than such as was seized under the attachment; nor shall the defendant be barred of any set-off he may have against the plaintiff. The revised statutes only authorized the goods and chattels of the defendant to be seized under an attachment issued by a justice ; but did not authorize such attachment to be served upon real estate of the defendant. (2 JR. >S. 230, § 30.) The effect of the 39th section of the act of April, 1831, therefore, is to repeal so much of the provisions of the title of the revised statutes, relative to courts held by justices of the peace, as authorized the ex-i ecution, issued in a suit commenced by attachment, where the defendant was not personally served with process and did not appeal therein, to be levied upon the goods and chattels of the defendant generally. And it also repeals, by necessary implication, so much of the provisions of that title of the revised statutes as made the filing of the transcript of such a judgment, in the county clerk’s office,.a lien upon the real estate of the defendant; and authorized the county clerk to issue an execution against such real estate, founded upon the filing of that transcript. The several judgments, stated in the complainant’s bill, founded upon attachments which were never served on the defendant personally, and to which he did not appear, are not such judgments as would entitle the owners thereof to come into this court for relief, upon the return of the executions unsatisfied, even if the transcripts thereof had been filed in the office of the clerk of the c.ounty within which such judgments were recovered. The remedy of the complainant, as the owner of those judgments, is to bring new suits thereon ; so as to give the defendant an opportunity to rebut the prima facie evidence of indebtedness, or to offset any demand he may have which is a proper subject of offset. And if the complainant succeeds in obtaining new and general judgments, in those "suits, he must pro'ceed and exhaust his remedy against the real as well as the personal estate of the defendant, by executions on such new judgments, before he will be entitled to come into this court for relief, and to obtain satisfaction out of property which he is unable to reach by such executions.

It remains for me to examine the question, whether an execution could be issued .upon the judgment in .the supreme court, under the provisions of the revised statutes and of the act of May, 1840, which could authorize the sale of the real estate of the defendant; such judgment never having been docketed, in the county where the execution was issued, so as to make the judgment a lien upon the defendant’s real estate in that county. When the case of Youngs v. Morrison, (10 Paige's Rep. 325,) was before me, upon an .appeal from the decision of one of the vice chancellors overruling a demurrer to the complainant’s bill, I was not aware that, the provisions of the revised statutes as to the rights of judgment creditors to-sell the real estate of the debtors, against whom judgments had been recovered in - courts of record, were materially varied from the language of the statute on that subject as it previously existed. I have, therefore, supposed that the effect of the 25th section of the act of May, 1840, requiring judgments and decrees to be docketed with the clerk of the county in order to make them liens upon the real estate of the debtor in such county, left the right of the plaintiff unimpaired to sell the real estate of the defendant upon execution, except as against bona fide purchasers or incumbrancers. The argument in the present case, however, has led me to reconsider the question, and'I will now state the result of my reexamination of the subject.

It is well known to every lawyer, that the real estate of a judgment debtor could not, by the common law, be taken in execution. The only remedy of the creditor was by a writ of fieri facias against the goods and chattels of the defendant in the judgment, or, by a levari facias, to levy the debt by the sale of his goods and the seizure of the accruing profits of his lands. But in 1285, the statute of Westminster, 2c? Ch. 18, was passed, giving to the creditor a writ of elegit upon his judgment; by which writ the sheriff was directed to deliver the goods of the defendant, at an appraisal, in payment of the judgment; and if that was not sufficient, he was also to deliver to the creditor a moiety of the freehold lands. Under this statute, the courts held the judgment to be a lien upon the- land of the defendant from the first day of the term of the court in which such judgment was obtained. This relation back, of the judgment, to the first day of the term, was found to be unjust as against bona fide purcha-' sers of the land before the judgment was acttially entered. And in 1677, the act for the prevention of frauds and perjuries, (29 Ch. 2, c. 3,) required the judge who signed the record of the judgment, to specify the time of signing the same in the margin of the record. That act also provided that such judgment, as against bona fide purchasers of the land of the judgment debtor, should not relate to the first day of the term, but should only be considered as a judgment from the time of signing thereof. Fifteen years afterwards, the statute 4th and 5th William & Mary, c. 20, required judgments to be docketed; and declared that judgments not docketed should not affect lands or tenements as against purchasers or mortgagees, or have any preference against heirs, executors or administrators, in the administration of their ancestor’s, testator’s or intestate’s estates. When the act of the 5th George 2d, c. 7, subjected all lands in the colonies to sale upon execution against the owners of such lands, upon judgments obtained in the colonial courts of record, the, same principle of constructive lien from the time of the signing of the judgment, was applied to all the freehold lauds of the defendant within the reach of the process of the court, by the judges in this and other colonies. That act was repealed in this state in the revision of 1787, which, in terms, repealed all English statutes that had previously been in force here. But its provisions were retained in the revised act of the 19th of March, 1787. (1 Greenl. Laws, 407.) The first section of that act declared that the lands and tenements, and real estate of every debtor, should be liable to be sold upon execution on judgments recovered in courts of record. The second section required the timé of signing of the record to be specified, and directed the clerk of the court to mark the time of filing the record upon the same. It further declared that no judgment should affect any lands or tenements, as to purchasers or mortgagees, or have any preference in the administration of the estates of deceased persons, but from the time of the actual filing of the record of such judgment. And the third section contained a re-enactment, in substance, of the provisions of the 4th and 5th William <fc Mary, c. 20, relative to the docketing of judgments, and the consequences of an omission to docket the same. The seventh section prescribed the form of the execution ; which was, that if sufficient goods and chattels of the judgment debtor could not be found to satisfy the debt and costs, that the sheriff should cause such debt and costs to be made of the lands and tenements whereof the judgment debtor was seized on the day when, such lauds became liable to the debt, (specifying the time,) or at any time afterwards, in whose hands soever the same might be. The same provisions were contained in the revision, of 1801, of the act concerning judgments and executions. (1 R. L. of 1801 p. 388.) The revised net of 1813 contained the same provis* ions, except] that in the first section of that act it is,- in terms, declared that the judgment shall be a lien upon the lands, tenements and real estate of the judgment debtor. The uniform practice under" these several acts, has been, so far as my- knowledge extends, to direct the sheriff"to cause the debt and costs to be made of the lands and tenements whereof the judgment debtor was seised upon the day of the filing of the judgment record, specifying that'time in the execution, whether the judgment had- or had- not been docketed at the time of issuing such, execution. And it'will be seen by a reference to these several statutes, that the clerk was not required to docket the judgment immediately upon filing the record, though he was hound to docket the same durihg the term in which it was entered, or Within six days thereafter. And by those statutes, the right to Sdll'the land upon execution; as against the debtor himself, did tiot" depend upon the question whether the judgmenthad or had not been docketed. But the real estate became liable to be sold Upon the execution to be issued'- on- such-judgment, the moment" the judgment, record was filed in the office of the clerk of the court; after- it bad becn-sigued by the proper officerthough as against subsequent purchasers' and mortgagees, the title acquired by the sheriff’s sale did not* relate back to the filing of the judgment* record, unless the judgment had* been- properly docketed* within the time allowed by law for that purpose. If may also be proper to remark, that in 1802; the legislature, for-the first time, authorized the court" of chancery to enforce its decrees by execution against the goods and-chattels,-lands and tenements of the person against whom such - decree was made. No provision, however, was made for the docketing of such: decrees. But the fourth section of the revised act of-1813, concerning the Court of chancery, contained' a" provision that the goods or chattels, lands or tenements, should not"be bound, as against a bona' fide purchaser;- until an actual levy or seizure by virtue of the execution. And the form of the execution, as settled by thisi court; pursuant to the provisions of that act, directed the shcriffto levy the amount of the decree of- the lands and tenements of. the debtor generally, in case the personal property, was insufficient for that purpose, without any reference to the date of the decree; leaving the question of priority as between the purchaser under such execution and decree, and other creditors of the defendant by judgment or decree, to be settled by the general principles of law in such cases.

It is insisted by the counsel for the appellant, in the present case, that the revised statutes have entirely changed the previous law on the subject of sales of real estate, and of chattels real, so that no sale thereof can now be made by virtue of an execution issued upon a judgment of a court of common law, until such judgment has been actually docketed ; so as to make it a lien upon such real estate or chattels real, as- against subsequent purchasers or incumbrancers. And I admit that the third section of the title of the revised statutes relative to judgments, (2 R. S. 359,) when taken in connection with the twenty-fourth section of the title relative to executions, and the duties of officers thereon, (Idem, 367,) which prescribes the form of the execution to be issued out of the courts of common law, appears to indicate an intention to change the former law upon the subject, so as to make the docketing of the judgment an absolute prerequisite to the exercise of the power to sell the defendant’s real estate upon execution. As no power existed at the common-law to sell freehold estate upon execution, such would be the necessary effect of these provisions as to the defendant’s freehold lands, upon the repeal of all the former statutes authorizing such sales, if the revised statutes had not, by other sections, authorized the issuing of an execution against the lands and tenements and chattels real of- the judgment debtor generally; and without any other qualification of the right, than that the record of the judgment shall be filed before the issuing of such execution. Such a right, however, is given by the first and second sections of the title relative to executions and the duties of officers thereon. (2 R. jS. 363.) And I think the effect of these sections, in connection with the other provisions of the revised statutes relative to the docketing of judgments and decrees, was to put the right to sell real estate and chattels real, on executions upon judgments of courts of common law, and on executions founded upon decrees of this court, on the same footing. That is, if the judgment or decree has been docketed, so as to make it a lien upon lands of the debtor, in the county to which the execution is issued, it will authorize the sale of the interest which he had in the land at the time of such docketing; if the time prescribed by law for the continuance of such lien has not expired. But if it has not been docketed, it will only authorize the sale of such interest as the debtor has in the land at the time of the seizure and sale; subject to the rights of those who have acquired interests in, or liens upon, such lands, as purchasers or incumbrancers subsequent to the judgment or decree. The twenty-fifth section of the act of May, 1840, (Laws of 1840, p. 334.) provides that no judgment or decree, thereafter to be entered, shall be a lien upon real estate, unless the same shall be docketed, in books to be provided and kept for that purpose, by the clerk of the county where the lands are situated. But there is nothing in that act requiring a judgment of the supreme court, or a decree of the court of chancery, to be docketed with the clerk of the county where the real estate of the defendant is situated ; to authorize the issuing of an execution, against such real estate to the sheriff of that county. But as the process of courts of common pleas, and of the superior court of the city of New-York, does not in ordinary cases extend to other counties, it is necessary to have the judgment docketed in the manner prescribed in the 29th section of the act of 1840, to authorize such local courts to issue their executions to any other county than that in which such local courts are held. It may also be proper to state that the act of May, 1840, does not in terms dispense, with the docketing of judgments in the supreme court, in the manner prescribed by the revised statutes. Nor does it authorize the docketing of such judgments in the office of the' county clerk, for the purpose of giving them a preference in payment out of the estate of the judgment debtor, in case of his death. And it may, therefore, be necessary that the clerks of the supreme court should continue to docket judgments in the manner prescribed in the revised Statutes, to entitle them to a preference over subsequent judgment creditors, in payment out of an insolvent estate. (See 2 R. S. 87, s 27. Idem, 360, § 12.)

In this case the bill alleges that the judgment in the supreme court was docketed in the office of the clerk of that court, at Albany, on the 21st'of September, 1842. That was sufficient, therefore, to authorize the execution to be issued in the form it was; although the neglect to docket it also in the county of Montgomery, prevented its operating as a lien on the real estate of the defendant in that county. The issuing of the execution to the county in which the defendant last resided, and the return of that execution unsatisfied, is sufficient to sustain the injunction, and to authorize a decree in this"suit for the amount of the judgment in the supreme, court, with interest and costs. The order appealed from is therefore not erroneous; and it must be affirmed with costs. Under the circumstances of this case, however, it must be affirmed without prejudice to the right of the defendant to apply to the vice chancellor to dissolve the injunction upon paying into court the amount of the judgment of the supreme court,-with interest thereon, and giving security for such costs as may be recovered against him in this suit; with liberty to the complainant to take such money out of court upon the usual security to refund, if he does not eventually succeed in obtaining a decree for the amount thereof.