Hulbert v. . Hulbert , 216 N.Y. 430 ( 1916 )

I dissent from the judgment about to be rendered in this case. I think it is in conflict with the established law of this state as it has existed for more than a century. It squarely overrules two decisions of our old Supreme Court, the doctrine of which has been adopted in other states and approved by the Supreme Court of the United States; and this without any change in conditions which in my opinion suffices to justify such action.

In the present case, three judgments stood duly docketed in Seneca county against the defendant Hulbert, when, in 1910, upon the death of his father he inherited a one-third interest in the real estate sought to be partitioned in this action. The three judgments thus simultaneously became liens upon the property so acquired by the judgment debtor. (Matter of Hazard, 73 Hun, 22; affd., on opinion below, 141 N.Y. 586.) Prior to the commencement of the partition suit, and pursuant to leave of court, duly granted, an execution against the property of the defendant Hulbert had been issued to the sheriff of Seneca county, on one of the three judgments which was in favor of St. Paul's Church of Waterloo, N.Y.; and the sheriff subsequently sold the judgment debtor's interest in the real estate inherited from his father to the respondent William F. Bacon. The question presented by this appeal is whether St. Paul's Church acquired a preference for its lien over the liens of the other two judgments by the steps which it had taken to enforce its judgment — to wit, the issue of an execution and causing the property to be advertised for sale thereunder.

The courts below have held, without dissent, that the judgment in favor of St. Paul's Church had thus become entitled to priority.

The leading cases relied upon as authority for this decision — which it is now proposed to reverse — are Adams v. Dyer (8 Johns. 347) and Waterman v. Haskin (11 Johns. 228), both decided by the old Supreme Court, the former in 1811, when Kent was chief justice and the latter in 1814 when Kent had become chancellor and had been succeeded as chief justice by Smith Thompson, who subsequently became an associate justice of the Supreme Court of the United States. With them on the bench were such men as Ambrose Spencer, William W. Van Ness and Joseph C. Yates; so that the judicial ability of the court can hardly be questioned by New York lawyers. They decided that where judgments were equal as to the date of the lien, the issue of execution upon one of the judgments, the advertisement of the lands for sale thereunder and the sale thereof by the sheriff entitled the plaintiff in that judgment to have his claim first satisfied out of the property. In the second case it was held to be enough to establish the priority of such a judgment that the sheriff who received the execution thereon had begun to execute the process first; he "thereby turned the scale of equal right and gained a priority by his vigilance." (Waterman v. Haskin, supra.)

That the doctrine of these cases and cases to the same effect in other states has been regarded as establishing the law generally in accordance with the rule therein laid down appears from the statements by the leading text writers and in the American and English Encyclopædia of Law.

"If two or more judgments, on account of their contemporaneous rendition or docketing, or from any other cause, are equally entitled to precedence as liens on the real estate of the judgment debtor, this equality may be destroyed, in order to give precedence to the lien holder who first attempts to subject any specific real estate to the payment of his lien." (2 Freeman on Judgments [4th ed.], section 374.)

In Rorer on Judicial Sales, section 703, the author states the rule thus: "If several judgment creditors have judgments of equal date, and their judgments are in law all liens on the real estate of the same defendant, the one that levies thereon first obtains priority."

In the American and English Encyclopædia of Law (2d ed., vol. 17, p. 796) we find: "It may be laid down as a general rule that where liens of judgment are equal, one judgment creditor may acquire a priority over another by superior vigilance in executing his judgment. Thus in some cases it has been held that when judgments in favor of different persons and against the same defendant are rendered or recorded on the same day, the judgment creditor first issuing execution and levying upon the debtor's property acquires a prior right to satisfaction. And the same rule has been applied to judgments rendered at the same term where by statute such judgments are made equal liens on the defendant's real estate."

I make these quotations simply to show that the doctrine of priority by execution where the judgment liens are equal is not a peculiarity of New York jurisprudence. I will cite a few cases from other jurisdictions in which it has been adopted and applied.

The case of Elston v. Castor (101 Ind. 426) resembles the present case in the fact that the judgment debtor became the owner of the lands in controversy after the rendition of the several judgments against him. These previously existing judgments, therefore, became equal liens on the land; but it was held that the one of the holders of such liens who first caused execution to be issued and levied on such land obtained a lien which was superior to that of the other judgments. Therationale of the doctrine is thus explained in the opinion: "Judgments are liens upon the real estate of the judgment debtor because the statute makes them such. This lien is given for the purpose of collection. Mr. Freeman says: ``A judgment is not a specific lien on any particular real estate of the judgment debtor, but a general lien upon all his real estate, subject to all prior liens, either legal or equitable, irrespective of any knowledge of the judgment creditor as to the existence of such liens.' ``In short a judgment creditor has no jus in re, but a mere power to make his general lien effectual by following up the steps of the law and consummating his judgment by an execution and levy on the land.' § 338. And so it was said in the case ofGimbel v. Stolte (59 Ind. 446, 451) distinguishing a mortgage and judgment lien. ``There can be no doubt that a law which gives a judgment creditor a lien on the real estate of the debtor, relates solely to the remedy.' When the liens are thus equal, and one of the judgment creditors first pursues the remedy and exercises the power of making his lien effectual by following up the steps of the law by an execution and levy, he thereby makes his consummated lien superior, which until then was but equal."

To the same effect is Smith v. Lind (29 Ill. 24) where the court said: "While the lien was made equal, diligence was left to its reward. Under the general law the lien of judgments is equal, but the vigilant creditor can acquire a preference in the payment of his judgment by first issuing his execution. If one creditor who is precisely equal to another in point of lien shall get an advantage by the use of superior diligence in discovering property, making a levy and sale of it, where is the hardship or injustice?"

In Bruce v. Vogel (38 Mo. 100, 106) the Supreme Court of Missouri followed the rule in Adams v. Dyer (supra), saying: "While the statute makes the liens equal, it does not deprive a party of any advantage he may gain by the exercise of superior diligence. If one creditor who is exactly equal to another as regards liens, by energy, perseverance and diligence, discovers property whereon to levy and make his money, justice demands that he shall reap the fruits of his industry. He may have gone to great labor and expense in investigating records and ferreting out and bringing to light property out of which to satisfy his execution; and to allow another person who had slept on his rights, and neither encountered labor or furnished money, to stand on an equality with him, would be inequitable. ``Vigilantibus, non dormientibus, jura subveniunt.' The laws assist those who are vigilant, not those who sleep over their rights. We are well satisfied, on principle, that where judgment liens are equal, one judgment creditor can get priority over another by his superior vigilance and watchfulness. The execution issued on the judgment rendered in favor of Brown was fairly entitled to priority, as it was first placed in the hands of the officer, and the levy and sale were made under it; and the money could not be diverted from it and applied to others subsequently issued, and under which there was neither levy nor sale."

In Bliss v. Watkins (16 Ala. 229), decided in 1849, the Supreme Court of Alabama said: "It seems to be well settled in New York, where judgments constitute a lien upon land, that where two judgments are rendered on the same day, although neither judgment creditor has the preference as a lien, yet if one of the creditors first take out execution, and proceed to levy and sell, his execution must be first satisfied, by reason of his superior diligence although the other creditor put his execution in the hands of the sheriff before the sale. (Citing Waterman v. Haskin, supra, andAdams v. Dyer, supra.) * * * Where the liens created by the judgments are equal, the money should be awarded to the creditor who first begins execution of his judgment. There is nothing unreasonable in this, and it is but carrying out the spirit of our statute in respect to the subject of lien. It is giving the priority to the most vigilant, as is done by the statute in respect to personal property, which gives the preference to the party who first places his fi. fa. in the sheriff's hands, although it may have issued upon a junior judgment."

In Iowa it is held that where judgments are entered on the same day, and become liens against the real estate of the judgment debtor, the judgment debtor who first issues execution and sells, obtains a preference (Lippencott, Johnson Co. v. Wilson,40 Iowa 425), but the courts of that state make a distinction as to after-acquired property. It is held that under such circumstances a different rule prevails and that the issuance of execution and the sale do not give a preference. No reason for the distinction is stated except that the two cases do not come within the same rule. (Kisterson v. Tate, 94 Iowa 665.) I am unable to perceive any difference in principle.

This review of the development of the rule asserted in the cases of Adams v. Dyer (supra) and Waterman v. Haskin (supra) indicates that it is rather firmly imbedded in our general jurisprudence. On what ground is it proposed to overrule these time-honored authorities, the doctrine of which appears now for the first time to be questioned in this state? As I understand the prevailing opinion it is simply because the judgments under consideration in the Adams and Waterman cases were docketed prior to the enactment of chapter 50 of the Revised Laws of 1813 which contained the first express declaration that a judgment should be a lien on land. It is perfectly clear, however, that the judgments considered in these two cases were liens upon the lands of the judgment debtor. In the first place in each case the court said so. I quote: "We must then consider the judgments equal as to the date of the lien," etc., etc. (Adams v. Dyer, supra.) "By the second section of the act concerning judgments and executions passed the 31st of March, 1801, a judgment lien attaches upon the time of filing the record of judgment." (Waterman v. Haskin, supra.) While it is quite true that under the statutes then in force judgments were not expressly declared to be liens upon real estate, those statutes necessarily implied that such was the law. The phraseology of the act of 1801 referred to in the Waterman case was substantially the same as that of the act of 1787 considered by the Circuit Court of the United States in Koning v. Bayard (14 Fed. Cases, 843), decided by Mr. Justice SMITH THOMPSON, sitting as circuit justice in 1829; and he held that the declaration in the act of 1787 that no judgment should affect land but from the time of the filing of the roll and the docketing of the judgment necessarily implied that upon that being done the judgment should affect the land and was equivalent to saying that it should then become a lien.

If a judgment actually is a lien upon land I cannot see what difference it can possibly make whether it has become a lien by reason of an express statutory declaration to that effect or by reason of necessary implication from other language used in the statute. If, as was virtually held in the case last cited, the declaration in the Revised Laws of 1813 merely expressed what had been necessarily implied before, I cannot comprehend how the enactment of the later statute can be regarded as furnishing any basis for the distinction made in the prevailing opinion.

One of the main purposes for which this court exists is to preserve the harmony and consistency of judicial decisions, finally determining the rights of litigants; and this can only be done by maintaining a due regard for precedents. If we overrule these two precedents, it seems to me that we warn counsel and the lower courts that they can no longer rely on authority to guide the former in giving advice or the latter in rendering decisions. If the lapse of time or later statutory enactments had brought about changed conditions which required us to take a different view from that taken by the old Supreme Court, I might agree with my brethren; but I can discover no change which affects the principle on which those cases were decided.

For these reasons I dissent and vote for the affirmance of the final order appealed from without modification.

CHASE, COLLIN and HOGAN, JJ., concur with SEABURY, J.; CUDDEBACK and POUND, JJ., concur with WILLARD BARTLETT, Ch. J.

Order modified, etc.