Muir v. Leitch , 7 Barb. 341 ( 1849 )

By the Court, Welles, J.

If the defendant Leitch acquired the rights of the purchaser, at the sheriff’s sale of the premises in question, it will be unnecessary to consider the objections to the proceedings and papers of the plaintiff, in his attempt to accomplish the same end ; for as the lien of the judgment in favor of Pitney, upon which the proceedings of the defendant Leitch are founded, was prior to that of the judgment held by the plaintiff, and by virtue of which he claims to have acquired such rights, the defendant was not bound to pay the amount due on the latter judgment, and will be entitled to hold his deed. (2 R. S. 372, § 55.)

1. The first point made by the plaintiff is that the Pitney judgment was satisfied by levy upon sufficient property of Satterlee Warden to satisfy it. On this subject it appears by the testimony of Hiram Ilatlibun, the former sheriff of Cayuga county, that he received the execution on the Pitney judgment on the 5th day of October, 1840, he being such sheriff at that time, and that he so continued until January 1st, 1842. That the execution has remained in his hands ever since. It was tested the 1st Monday of July, 1840, and returnable sixty days from its receipt by the sheriff. That within a very few days after he received the execution, and he thinks within one or two days after, he levied, by virtue of it, upon the following personal property, in possession of Satterlee Warden, viz. a large amount of household furniture in the dwelling house of Warden, being the whole thereof except what was exempt from sale on execution, one, and he thinks, two sorrel horses, a pleasure carriage on the premises of Warden, a large quantity of bran and shorts in possession of Warden in a shop in Auburn, called the Burr Block shop, and a large quantity of unground plaster or gypsum in possession of Warden in an open shed near the Stone Mill in Auburn. That he did not sell any of the said property, in consequence of being instructed not to do so, by the defendant Leitch, who informed him that he, Leitch, had satisfied the plaintiff Pitney, and that he, the witness, should retain the execution in his hands, but not enforce it against the personal property of Warden, which was not to be sold thereon, but that the witness should hold the execution subject to the orders óf him, the said Leitch, who claimed to be the party in interest in'the execution, having the control of it. It appears by other evidence in the case that the bran and shorts, and the gypsum, referred to by the witness Rathbun as having been levied on by him, was the property of the partnership firm of Warden & Muir, which firm was insolvent, and that the household furniture, and horse and carriage, did not exceed $800 in value, and probably not over $700, and if the value of bran and shorts and the plaster is added, it would not, upon a liberal allowance, amount in value to the principal sum of the Pitney judgment.

An attempt was made to prove, by the witness Robert Muir, that the Pitney judgment had been reduced by payments or otherwise, so that at the time of the proceedings of these parties with a view to acquire the rights of the purchaser at the sale of the premises in question, there was only four or five hundred dollars due upon it. Muir, the witness, testifies to conversations with the defendant Leitch, from which it would appear that such was the fact. But I am satisfied, from other evidence detailed in the case, that Mr. Muir misunderstood the defendant Leitch, or that his recollection has failed him ; and that the declarations he testifies to related to payments upon a judgment in the hands of Leitch, in favor of one Cephas Smith, against the said Asaph D. Leonard and others. If any part of the property levied upon by Sheriff Rathbun, by virtue of the execution issued upon the Pitney judgment, belonged to the firm of Warden & Muir, such property would not be liable for any indebtedness of Warden, except a partnership debt, until the debts of the firm were all paid; and if the firm was insolvent, a purchaser under a sale in pursuance of such levy, would of course acquire no valuable interest in such property. And it follows that the bran and shorts, and the plaster, should be excluded from the estimate, in ascertaining whether the levy was upon sufficient property to satisfy the execution. (Mathews v. Payne and others, 6 Paige, 20. Buchan v. Sumner, 2 Barb. Ch. Rep. 197. Taylor v. Fields, 4 Vesey, 396. Ex parte King, 17 Id. 115. Nicholl v. Mumford, 4 John. Ch. Rep. 522. Story on Part. §§ 363, 364, 365. Story’s Eq. Jur. § 675. Jackson v. Cornell, 1 Sandf. Ch. Rep. 348. 3 Kent’s Com. 264, 265, 3d ed.)

It is therefore evident, from the testimony, that the levy was not upon sufficient personal property to satisfy the execution. And admitting the value of the property which was levied upon and which was applicable to this execution, to be deducted from the amount of the judgment, there remains a balance which would be a valid lien upon the real estate of Leonard, and which was sufficient to entitle him, under the statute, to acquire the rights of the purchaser at the sale, or to become the purchaser from another judgment creditor who had acquired such rights.

II. The plaintiff’s next point is that the defendant Leitch suffered the execution on the Pitney judgment to lie in the sheriff’s hands dormant, and that he can not resuscitate that judgment as against a sale upon a junior judgment. And that while that execution remained dormant, the lien of the judgment was also dormant. I do not think the authorities cited by the plaintiff, or any others that can be found, sustain the position assumed, that if the execution is dormant the judgment loses its lien upon the land of the defendant. Qnstions in regard to dormant executions, generally, and I believe invariably, arise between conflicting claimants of personal property. The doctrine on the subject does not apply to real estate, the lien upon which depends upon the docketing of the judgment and not upon the execution or levy. The lien upon the personal estate depends upon the issuing of the execution. If an execution creditor causes a levy to be made upon the goods of his debtor, and then directs the officer charged with the execution of the process not to proceed for a certain time, or until further orders, bis conduct is a fraud upon a junior creditor, whose execution is levied afterwards, and before the directions of the first, to the officer, are countermanded; and in such case, the first execution will be adjudged dormant, and the second will have priority. In the case supposed, the effect of the conduct of the first creditor is to hinder and delay the other, and tie up the defendant’s goods from other creditors. It is a prostitution of the process of the court, which is designed as a coercive proceeding by the plaintiff against the defendant, to compel payment, and not to prevent other creditors collecting their debts. None of this reasoning can apply to real estate. The lien of the judgment never becomes dormant until the expiration of the ten years statute limitation.

III, It is contended, in the third place, on the part of the plaintiff, that if the Pitney judgment was not dormant, then the premises in question were sold on that execution; the same being then in the hands of the sheriff of Cayuga county; and if so, then the lien of the judgment as to these premises was gone.

If the premises in question were sold upon the execution issued on the Pitney judgment, together with that in favor of the defendant Leitch, the lien of the former judgment upon those premises would be extinguished, although none of the proceeds of the sale would have been applicable to the execution, but were wholly exhausted by the other and older execution. (Ex parte Paddock, 4 Hill, 544.) But in this case there can be no pretence that the premises were, in fact, sold upon the execution issued on the Pitney judgment. The bill and answer both alledge the sale to have been on the Leitch judgment, and the proof establishes the same thing. The execution on the Pitney judgment was issued and delivered to Sheriff Rathbun in 1840, and the premises were sold in 1845 by another sheriff, who never had an execution, issued upon that judgment, in his hands, and could not have sold upon the one in the hands of Rathbun.

IV. Another point made by the plaintiff is that the defendant Leitch did not in his affidavit state the true sum due upon the Pitney .judgment, and did not, in that respect, conform to the requirement of the statute. (2 R. S. 373, § 60, sub. 3.)

By this, I suppose, is meant that the. amount stated in the affidavit to be the true amount due on the judgment was not actually due ; or in other words, that the affidavit, though sufficient in form, and certain in this respect, is shown to be untrue in point of fact. If that is what is meant by the objection, I think it is founded upon a wrong construction of the statute. I do not think the statute requires that the amount stated in the affidavit shall be, at all events, the true amount. If the affidavit is made in good faith and is in proper form, it is all the statute requires. If the party opposing is able to show that nothing is due, he of course would destroy the lien of the judgment ; but if he shows only that there is not as much due as the affidavit states, the lien is still good for the balance, and that balance is as effectual to entitle the party to acquire the rights of the original purchaser, or to become the purchaser from a former judgment creditor, as if the whole amount Claimed were due. If in this case there was in fact but a small balance due on the Pitney judgment when Leitch made his affidavit, and he knew it, his swearing that the whole amount, with in* terest, was due, might be regarded as a fraud upon junior judgment creditors of Leonard, with a view to deter them from attempting to become purchasers from him under the statute. It would have a tendency to stifle competition among judgment creditors, amongst whom it is the policy of the statute to keep the door open for competition during the whole of the last three of the fifteen months succeeding the sale. In this case, however, whatever may have been the fact in regard to the actual amount due, I am unable to discover any ground for an imputation upon Leitch of wilfully misrepresenting the fact, in his affidavit. I am prepared to go further, and to say that the evidence entirely fails in showing that any thing whatever has been paid to Leitch upon the judgment in question; and that if the amount sworn to is no more than the principal of the judgment, with the interest accurately computed thereon, the affidavit in that respect was literally true.

Y. The plaintiff’s fifth point is that the defendant Leitch, by his agreement with Satterlee Warden, (one of the judgment debtors,) at the time he took the assignment of the Pitney judgment, whereby he postponed the time of payment of the amount due thereon, thereby postponed the lien thereof, and destroyed the same as against other judgments then existing,

I am not prepared, to subscribe to this doctrine. As well might it be said that if a plaintiff in a judgment stipulates with the defendant not to issue execution for one year, or any longer or shorter period, the lien of the judgment is thereby suspended or postponed. The statute which limits the duration of the lien of a judgment to ten years from the time of docketing, I think in effect settles this question. I believe it has never been held or understood by the courts that the lien of a judgment is affected by the plaintiff binding himself not to take out execution for any stipulated time less than ten years.

VI. The plaintiff contends, in the sixth place, that the receiving a mortgage for the same debt, payable at a distant day, was -in fact and in law a release of the mortgaged property from that execution, and also from the judgment, as no part thereof could be sold thereon.

The counsel for the plaintiff, in support of this point, relies upon 2 R. S. 368, §§ 31, 32. Delaplaine v. Hitchcock, (6 Hill, 14,) and Patterson v. Cummin, (2 Penn. R. 32.)

The statute referred to is respecting the case of a judgment recovered for a debt secured by mortgage of real estate, declaring it unlawful for the sheriff to sell the equity of redemption of the mortgagor, &c. in such estate by virtue of any execution upon such judgment, and directing the plaintiff’s attorney in such case,- to indorse upon the execution a brief description of . the mortgaged premises, «fee. and a direction to the sheriff not to levy the execution upon such premises, or any part thereof. It is sufficient to say that this case is not within the letter, spirit, or equity of the statute, which was designed to apply to the ordinary case of a debt secured by bond and mortgage, and to confine the creditor’s remedy upon the land mortgaged, to the mortgage alone. It certainly could never have been intended to destroy the lien of a judgment to be recovered upon the bond or other security accompanying the mortgage, upon lands other than the mortgaged premises. Admitting in this case, that by the operation of the mortgage which Warden gave to Leitch, the lien of the Pitney judgment upon the mortgaged premises was destoyed, it does not follow, as I can perceive, that its lien upon other lands belonging to another party defendant, is also destroyed.

The case of Delaplaine v. Hitchcock was precisely within the letter of the statute, and ray only surprise is that any respectable lawyer could have supposed there was any question in that case to present to the court. It Certainly bears no analogy to the present. The case referred to in 2d Pennsylvania. Reports, I have not been able to find, but from a short note of it in 2d U. S. Dig. p. 52, § 277, I am inclined to think it was decided under some statute of that state. The note is as follows: “ Under directions given by a party or his attorney,

to the sheriff, not to consider his judgment, in holding an inquisition of a debtor’s lands, the judgment is postponed to all others then in existence against the debtor.” If it has any bearing upon the present case, I confess I have been unable to discover it.

YII. The only remaining objection of the plaintiff to the defendant’s proceeding is that the defendant Leitch has other securities for the moneys paid by him for the Pitney judgment, and is not in equity entitled to redeem.

The other security referred to is the mortgage of Warden, for $2500, bearing date 22d December, 1840. That was given to secure $1550 lent by Leitch to Warden at the time, and for the further purpose of indemnifying Leitch against loss for paying up and taking an assignment of the Pitney judgment. The land mortgaged was at the time encumbered by two prior mortgages, one of which was to Leitch for about $1500, and the other to Beach, upon which Leitch was obliged afterwards to pay between five and six hundred dollars to save and protect the lien of the mortgage for $2500. The land is proved to have been worth, at the date of the latter mortgage, from $3000 to $3500. Taking the medium ($3250) as the value and the $1550 lent, and the prior incumbrances estimated at $2050, more than exhaust the value of the land, leaving nothing in this mortgage to operate by way of security for the Pitnéy judgment, So that viewing the subject in this light the equitable force of the point vanishes. The mortgage, so far as it could be regarded as security for the Pitney judgment, was collateral, and if it could be collected without resorting to the mortgage, it was Leitch’s duty to do it; for if the evidence of Satterlee Warden is to be relied upon, the judgment belonged equitably to Robert Muir to pay, and as between Warden and Leonard, only one-half belonged to Warden to pay.

I am not prepared to hold that the fact of a judgment creditor having other security for the debt, besides the judgment, in and of itself disqualifies the judgment from being the foundation of the creditor’s right under the statute to redeem. Whatever equities may attach in particular cases arising out of such considerations, it is sufficient that none exists in this case which ought to affect the defendant Leitch.

Upon the whole, I think the defendant Leitch was entitled to the deed upon the sale, which has been executed and delivered to him by the defendant Carr.

The bill must therefore be dismissed, with costs to the defendants to be taxed.

Decree accordingly