Ross v. Ross

J. F. Daly, J.

[After stating the facts as above.]—A person having a lien on real property sold by virtue of an execution, and being entitled to the surplus arising on such sale, after satisfaction of the execution, may apply to the court from which the process issued for an order directing the sheriff to pay over such surplus. The application is by motion, and if there be a dispute as to the right to the surplus, it will be granted when the equity of the case can be accurately ascertained (Williams v. Rogers, 5 Johns. 163-7).

It seems proper that such a motion should be made in the action in which the execution is issued, since it must be made to the court from which the execution issued, as the avails of the sale while they remain in the hands of the sheriff are subject to the control of the court (Van Nest v. Yeomans, 1 Wend. 87-8). If the motion be made by a junior judgment creditor who claims the surplus by virtue of the lien of his execution, it will be made in his own action, as in the cases cited.

But where the application is by a grantee of the premises, who is entitled to the surplus moneys if his deed be not void (Every v. Edgerton, 7 Wend. 259), and who is not a party to any action against the judgment debtor, there seems to be no good reason why his motion should not be made.in the action in which the sale was had and the surplus made.

The ordinary notice of this motion could not be given to the defendant Reuben Ross, because he had absconded, and his whereabouts was unknown. The court might have required notice by publication, if the facts were doubtful: but the papers submitted by all the parties show beyond a doubt that he actually conveyed this property to Mrs. Parkinson, and the reasons in McLaughlin v. Mayor (8 Daly, 474), do not apply in this case. The deed from defendant to her, which is duly executed and recorded, is not denied.

The question of awarding costs against Mr. Stafford, who opposed the motion, does not come up on this appeal, which is not taken by him but by Mrs. Ross.

The order should be affirmed with $10 costs and disbursements.

Beach, J., concurred.

Order affirmed, with costs.