Darling v. Littlejohn

12 N.Y.S. 205, 35 N.Y. St. Rep. 516, 58 Hun 608, 1890 N.Y. Misc. LEXIS 3483

• Court: New York Supreme Court
• Decided: December 10, 1890
• Status: Published

Opinion

Pratt, J.

This is a submission of controversy, and the only question really involved is whether the lien of a judgment can be extended for more than 10 years by the levy of an execution within the 10 years from docketing the judgment as against a purchaser for value. To save the lien as against bona fide purchasers and incumbrancers, not only must execution issue, but the sale must take place within the 10 years, unless restrained by injunction or writ of error. Little v. Harvey, 9 Wend. 157; Roe v. Swart, 5 Cow. 294; Tufts v. Tufts, 18 Wend. 621; Scott v. Howard, 3 Barb. 319. In this case, the judgment was docketed April 11, 1878, execution issued on the 10th of April, 1888, and the sale made on July 24, 1888. Ho lis pendens, or other notice of claim under the judgment, was filed or recorded in the county clerk’s office between the date of docketing said judgment and the recording of the sheriff’s notice of sale on the 24th of July, 1888, except the sheriff’s notice of sale was affixed to the record of mortgage sales by advertisement on the 9th of June, 1888. The property was sold by the judgment debtor on the 26th of June, 1880, to a bona fide purchaser for value, who afterwards died. The premises were devised to the plaintiff, who entered into an agreement to sell the property to the defendant herein, who objects to the title on the ground that the said sale on execution is a cloud upon the title. The plaintiff claims that the lien of said judgment had expired by statutory limitation before the sale thereunder by the sheriff, and therefore the sale did not affect the title. We think the contention of the plaintiff is right, and the defendant must therefore perform her contract for the purchase of the property.