Van Nest v. Yeomans

1 Wend. 87

• Court: New York Supreme Court
• Decided: August 15, 1828
• Status: Published

Opinion

By the Court,

Woodworth, J.

The plaintiff is entitled to the effect of his motion. He was a judgment creditor, and had a lien upon the property sold. Had the sale taken place under his judgment, he might have become the purchaser, and would have had the benefit of the property, to the extent of its value, subject only to the anterior lien of the judgment on which the property has been sold.. Of this right he ought not to be deprived by the act of the defendant, giving.a preference to another creditor, by means of an order or direction to the sheriff, to pay over the surplus monies. The right of a junior judgment creditor to redeem, if such a proceeding was allowed, might frequently be of no use; for if the property was sold at its full value, and the surplus paid to the defendant, or to his order, it would be of no benefit to the junior judgment creditor to redeem. The only way, therefore, in which his judgment can be rendered availing, is to direct the sheriff to pay over the surplus monies to him. This the court have a right to order; for whilst the avails of the sale remain in the hands of the sheriff, they are subject to the control of the court. A rule is granted accordingly, that the surplus monies be paid over to the junior judgment creditor.