The Atlas Refining Company v. Lester B. Smith.

sequent incumbrances by mortgage, judgment, decree or otherwise and bona fide purchasers, even though the incumbrance was taken or acquired or purchase made with full knowledge of the existence of the prior judgment, but without fraudulent intent to prevent the payment thereof (Scott v. Howard, 3 Barb., 319; Roe v. Swart, 5 Cowen, 294; Ex parte Peru Iron Co., 7 Cowen, 540-554; Tufts' Adm'r v. Tufts, 18 Wend., 621; Little v. Harvey, 9 Wend., 157; Pettit v. Shepard, 5 Paige, 493).

Prior to the enactment of the Code, if the judgment debtor died after judgment and before execution issued, an execution could not be issued until the expiration of one year after his death (2 R. S., 368, Section 27). In such cases an execution could then only be had against the personal representatives, heirs or terra-tenants after the return of a writ of scire facias (Wood v. Morehouse, 45 N. Y., 368-374-5; Marine Bank v. Van Brunt, 61 Barb., 361, 49 N. Y., 160-163).

Section 378 of the Code of Procedure provided that where the judgment debtor died after the recovery of the judgment, his heirs, devisees or legatees or the tenants of real property owned by him "and affected by the judg ment" might, after the expiration of three years from the time of granting letters testamentary or of administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively, and that the personal representatives of deceased judgment debtor might be so summoned at any time within one year after their appointment. Chapter 295 of the Laws of 1850 provided as follows:

"Notwithstanding the death of a party after judgment, execution thereon against any property, lands, tenements, real estate or chattels real upon which such judgment shall be a lien, either at law or in equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution cannot be issued within a year after the death of the defendant, nor

The Atlas Refining Company v. Lester B. Smith.

in any case, unless upon permission granted by the Surrogate of the County who has jurisdiction to grant administration of letters testamentary on the estate of the deceased judgment debtor, which Surrogate may, on sufficient cause shown, make an order granting permission to issue such execution as aforesaid."

Section 376 of the Code of Procedure requiring leave of the Court in which the judgment was docketed, on notice to the heirs, devisees or legatees,, or personal representatives, to issue execution where the judgment debtor died after the recovery of judgment, and said Act of 1850, requiring like consent of the Surrogate's Court, remained the law governing the issue of executions in such cases as to all judgments rendered prior to the enactment of the Code of Civil Procedure, and it was immaterial to which court an application was first made (Marine Bank v. Van Brunt, supra; Wallace v. Swinton, 64 N. Y., 188).

Section 282 of the Code of Procedure provided for the docketing of judgments to conform to the new practice, but left the extent of the lien and the manner of enforcing the same to be determined by the Revised Statutes (Throop's note to Section 1252, Code of Civil Pro.; Matter of Hallock, 61, St. Rep., 230). But the Legislature of 1851 amended this section by providing that a judgment, upon being duly docketed, "shall be a lien on the real property in the country where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the County where it was rendered."

Such was the state of the statutory law on these questions when the first part of the Code of Civil Procedure was enacted. Section 1251 of the Code of Civil Procedure, as originally enacted, provided as follows:

"Except as otherwise specially prescribed by law,

The Atlas Refining Company v. Lester B. Smith.

judgment, hereafter rendered, which is docketed in a County Clerk's office, as prescribed in this article, binds, and is a charge upon, for ten years after filing the judg ment roll, and no longer, the real property and chattels real, in that County, which the judgment debtor has at the time of so docketing it, or which he acquires at any time. afterwards and within the ten years."

Section 1252, as originally enacted, provided as follows: "When ten years after filing the judgment roll have expired, real property or a chattel real which the judgment debtor, or real property which a person deriving his right or title thereto as the heir or devisee of the judgment debtor, then has, in any County, may be levied upon by virtue of an execution against property issued to the Sheriff of that County, upon a judgment hereafter rendered, by filing with the clerk of that County a notice, subscribed by the Sheriff, describing the judgment, the execution and the property levied upon; and, if the interest levied upon is that of an heir or devisee, specifying that fact and the name of the heir or devisee. The notice must be recorded and indexed by the clerk as a notice of the pendency of an action. For that purpose the judgment debtor, or his heir or devisee named in the notice, is regarded as a party to an action. The judgment binds, and becomes a charge upon, the right and title thus levied upon of the judg ment debtor or of his heir or devisee, as the case may be, only from the time of recording and indexing the notice, and until the execution is set aside or returned."

Neither of these sections has been since amended.

Throop, in his note to Section 1252, says that a doubt existed as to whether the provision of the Revised Statute continuing the lien of a judgment for twenty years, as against the defendant, his heirs and devisees, was repealed by implication by said Amendment of 1851 to Section 282 of the Code of Procedure, and if so, as to whether the lien of a judgment could be extended by redocketing

The Atlas Refining Company v. Lester B. Smith.

it. He states that for these reasons it was deemed necessary to replace the former provisions by these two sections, the first limiting the lien in all cases to ten years after docketing the judgment, in accordance with the apparent meaning of said amendment to the Code, and the second supplying the casus omissus by providing a mode which enables a judgment creditor to proceed 'against real property after the lapse of the ten years. In his note in the appendix to Sections 1251 and 1252 of the Code, he says that Section 1252 was designed "to enable a creditor after the lapse of ten years to bind and reach the real property of the judgment debtor, or of an heir or devisee, by issuing an execution and filing a notice similar to a notice of the pendency of an action."

At common law a judgment was not a lien upon real property; consequently a judgment creditor only acquired such lien as is given by the statute. The execution authorized by Section 1252 during the life of the judgment and after its lien period has expired, is a new special mode of levying an execution upon land, manifestly designed to revive and continue the right conferred by the Revised Statutes, but in a different manner. The lien created thereby commences from the time the notice therein provided for is indexed and recorded, and the execution must require a sale of the right and title of the judgment debtor, his heirs and devisees, as the case may be, existing at that time and not at the time of the original docketing of the judg ment (Carozynski v. Russell, 73 Hun, 497; Evans v. Hill, 18 Hun, 464; I. & T. Nat. Bank r. Quackenbush, 71 St. Rep., 280). It will be observed that the Legislature, by the language employed in this section, has clearly shown its intention to confer upon the judgment creditor the right, after the expiration of the ten years, to enforce the judgment against the real property and chattels real of a judgment debtor, and in case of his death, against such property in the hands of his heirs and devisees in any County to the Sheriff of which the execution is issued,

The Atlas Refining Company v. Lester B. Smith.

and it is not limited to property on which the judgment has been a lien.

Section 1379, as originally enacted, provided as follows: "An execution to collect a sum of money cannot be issued against the property of a judgment debtor who has died since the entry of the judgment, except as prescribed in the next two sections."

The language of this section being sufficiently definite and comprehensive to embrace executions upon which judgments may be enforced, pursuant to Section 1252, it follows that it must have been intended to provide in Sections 1380 and 1381 for the issue of the executions referred to in Section 1252.

Section 1380, as originally enacted, provided as follows: "After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be isued, and a decree to the same effect is procured from a Surrogate's Court of the State which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor."

The reviser states that this section was prepared from said Chapter 295 of the Laws of 1850, but it is evident that it is also a re-enactment of part of Section 376 of the Code of Procedure. This section has been since amended many times by adding provisions thereto, otherwise limiting the time of granting permission to issue executions and continuing liens existing at the time of the death of the judgment debtor, and providing for cases where real estate has been conveyed to the judgment debtor in fraud of his creditors, but such amendments are not material to this case for the reason that the greatest limitation upon