Fellows v. Kittredge

56 How. Pr. 498

• Court: New York Marine Court
• Decided: March 15, 1879
• Status: Published

Opinion

McAdam, J.

A judgment is not a specific lien on any particular real estate of the judgment debtor but a general lien upon all his real estate (Rodgers agt. Bonner, 45 N. Y., 379). In short, a judgment creditor has no jus in re but a mere naked power to make his general lien effectual by following up the steps of the law and consummating his judgment by execution and levy on the land (See Conrad agt. Insurance Co., 1 Peters, 387, 443). The new Code (sec. 1268) allows the judgment creditor two years after the bankrupt’s discharge to make his general lien effective; and whether he improves the opportunity or not it operates as a sort of statute of limitation and allows the bankrupt, after the two years have elapsed, to apply, upon proof of his discharge, to the court in which the judgment was recovered for an order directing it to be discharged of record; and if, upon the hearing of the motion, it is made to appear that the bankrupt has been discharged from the payment of the judgment, the Code (sec. 1268) is mandatory “ that an order must be made ” granting the application. The defendants have supplied the necessary proofs and are, therefore, entitled to the relief they ask (See Deyo agt. Van Valkenburgh, 5 Hill, 242). The lien of a. judgment recovered in a state court is regulated by the state law which creates and regulates- the nature, duration, effect and mode of discharge of such lien which, when declared, cannot' be restrained or extended by the court. There is nothing in the statute which authorizes a partial or conditional discharge of the judgment, or which authorizes the court, by decree or otherwise, to preserve and continue the lien of the judgment creditors upon any specific property, real or personal. The defendants are, by force of the statute, entitled to an unconditional order discharging the judgment and their motion, therefore, will be granted.