Snedeker v. Snedeker ( 1879 )

Barnard, P. J. :

I think Coles Carman got no title under the sheriff’s deed of the premises in question. Before the lien of the judgment attached, under which the sale was made, the judgment debtor had conveyed the premises to Campbell. All the sheriff could sell was the right, title and interest which Snedeker, the judgment debtor, had at the docketing of the judgment. (2 R. S., 374.) As the debtor was seized of no estate on that day the sheriff could convey none. (Lamont v. Cheshire, 65 N. Y., 30.) It is no answer to say that the deed was fraudulent. A creditor at large cannot attack such a transfer. Carman is not a creditor. The plaintiff in the judgment could not assail the conveyance until after return of their execution unsatisfied. (Forbes v. Waller, 25 N. Y., 430; Crippen, v. Hudson, 3 Kernan, 161.)

The order confirming referee’s report should be reversed, with costs and disbursements, and the case sent to a referee to report order of liens on surplus.

DyicmaN, J., concurred; Gilbert, J., not sitting.

Order reversed, with costs and disbursements, and case referred to referee to report priority of liens.