Wilgus v. Bloodgood , 33 How. Pr. 289 ( 1867 )

By the court, Balcom, J.

The law of 1850 confers authority upon the surrogate, after the expiration of one year from the death of a judgment debtor, to grant permission to issue execution on the judgment against any property, lands, tenements, real estáte, or chattels real, upon which such judgment shall be a lien, either at law or in equity. (Laws of 1850, c7i.‘295, p. 639.)

Application to this court for leave to issue execution on a judgment rendered therein need not be made before the lapse of five years from the entry of the judgment; and after the expiration of such five years, leave of the court to issue execution on the judgment is unnecessary, when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part. {Code, § 284.)

If no apphcation to this court were necessary for leave to issue execution on the judgment, in this case, it was prudent for the owner of the judgment to make such an application, and not rest the vaHdity of a new execution on the judgment wholly upon the permission granted by the surrogate. The moving party has followed the suggestion made in Alden agt. Clark (11 How. Pr. R. 209). He gave notice of his apphcation to aU persons interested in the estate left by the defendant, and to the occupant and claimant of the real estate he seeks to have sold by virtue of a new execution on the judgment.

The law of 1850 exphcitly authorizes the issuing of execution against a judgment debtor after the expiration of one year from his death, provided the surrogate makes an order granting permission to issue such execution; and there is no provision in that law which requires the owner of the judgment to apply to the court that rendered the judgment for leave to issue the execution. (Laws of 1850, p. 639.) [Reference- must be had to the Code to ascertain when an apphcation should be made to the court' that rendered the judgment for leave to issue execution thereon. {Bee Code, §284.)

"We are unable to see any vaHd objection to, the assignee of the judgment making the apphcation for leave to issue execution on the same. The presumption is that the plaintiffs have assented to the use of their names in the proceedings ; for it is not shown that they object thereto. We are of the opinion the assignee of a judgment may take steps to enforce it by execution, unless some good objection thereto be made on the part of the person or persons who recovered it.

It is possible, if not probable, that some person or persons interested on the part of the defendant have a valid claim to or upon the real estate that Titus expects to sell by virtue of the execution to be issued on the judgment in the case; and I think it is proper that the rights of such person or persons should be protected by the insertion of an appropriate clause in the order in question. For this reason I am of the opinion the order appealed from should be so modified as to be without prejudice to the legal or equitable rights of any person or persons in or to any of the real estate left by the defendant, as. such rights may be established in any litigation concerning such real estate.. But my brethren are of the opinion the order, as it now is, will not prejudice the legal or equitable rights of any person or persons in or to any of the real estate left by the defendant, though they had notice of the application for leave to issue execution on the judgment, and opposed such application.

The order appealed from is therefore affirmed, with $10 costs.