Wallace v. . Berdell , 105 N.Y. 7 ( 1887 )

Rapallo, J.

' In the first of the above entitled actions the plaintiffs, composing the firm of Wallace & Phillips, recovered a judgment againt Bobert H. Berdeil for about $9,000, and issued execution thereon. They had also issued an attachment in that action against the property of the defendant therein.

After the issue of the execution, W allace & Phillips instituted action 17o. 2 for the purpose of setting aside a conveyance of certain real estate which had been conveyed by Bobert H. Berdeil, the judgment debtor, to his son Charles P. Berdeil, and for other relief. They succeeded in that action in the Supreme Court and obtained a judgment directing the sale of the real estate for the satisfaction of the amount remaining unpaid upon the judgment of Wallace & Phillips, and that such judgment he declared to be a lien prior to all claim of Charles P. Berdeil, and of Lizzie A. Berdeil in whose favor Bobert H. Berdeil had confessed a judgment, which was an apparent lien upon the property. The sale was made accordingly and the property was bought in hy Wallace and Murray for the benefit of the plaintiffs and pther judgment creditors of Berdell, for a sum sufficient to satisfy the judgments. The purchasers entered into possession and retained such possession for several years. The execution and attachment which had been issued in action No. 1, were returned satisfied, and an entry was made on the docket of the judgment in No. 1, discharging it of record. Wallace & Phillips having both died, the action was continued in the name of the present plaintiff as executrix of Wallace, the last survivor.

On appeal to this court the judgment in action No. 2, under which the sale had been made, was reversed and a new trial ordered, and restitution was afterward ordered to be made to Charles P. Berdell, of the real estate sold, and of the value of the rents and profits during the_time the purchasers had been in possession. Restitution was accordingly made of the land, but the rents and profit have not yet been restored.

The order now under review required the clerk of Orange county to take from the files in his office the attachment and execution in action No. 1, together with the returns thereto, and deliver them to the late sheriff of said county, and to cancel the record of the satisfaction of the judgment and the returns to said attachment and execution. It was granted at Special Term, and affirmed at General Term and this appeal is from such affirmance.

The principal objection made by the defendants to the order is that it was erroneous, in any view, to grant it before the rents were restored.

In so far as the order affects the judgment debtor, Robert H. Berdell, by restoring the execution and attachment against him, this objection is not available. He has no interest, as the ease now stands, in the rents and profits, and cannot claim that they should be applied in satisfaction of the judgment and execution against him, inasmuch as the purchaser is liable to refund them to Charles P. Berdell, a.nd has been ordered by the court so to do. The plaintiff cannot be bound to credit them on the execution while they are subject to the enforcement of the order of restitution.

As to the other defendants, the objection is that a new trial having been granted in action Bo. 2, they are entitled to insist that the execution has been satisfied, and therefore the plaintiff is not in a position to maintain a creditor’s bill. That point operates rather to support the order than to overthrow it. A new trial having been ordered, the plaintiff should be restored t® the same position which she held at the time of the first trial. If the judgment has been paid, the defendants are at liberty to prove that defense on the new trial, and the amount unpaid, should it become material, can be shown. Certainly Charles P. Berdell, the principal defendant, cannot insist upon the entry of satisfaction being retained on account of the rents collected, while he is pursuing the fund arising from those rents.

It is claimed that all that was sold was the right, title and interest of Bobert H. Berdell in the real estate sold. That there is no warranty on a sale under execution, and that the debtor is entitled to have the proceeds applied in satisfaction of the judgment, even though the title of the purchaser fails. That would be the case in an ordinary sale under execution where the judgment remained unreversed and restitution had not been ordered. But in the present case the record which was before us on the appeal in action Bo. 2, showed that the sale was not on execution, but under the special decree or judgment in that case, and that it was a sale not merely of the right, title and interest of Bobert H. Berdell, but of the real estate itself, free and discharged of all claim of Charles P. Berdell and the other defendants in the action. Under such a sale the purchaser would have the right to such a title as the judgment purported to authorize to be sold. The judgment by means of which satisfaction was obtained, having been reversed and the property sold under it ordered to be restored, the original attachment and execution were necessarily revived and the order appealed from was proper.

The order should be affirmed with costs.

All concur.

Order affirmed.