
    In the Matter of the Application of John A. Holmes for an Order Granting Leave to Issue Execution, etc.
    
    
      (Court of Appeals,
    
    
      Filed February 2, 1892.)
    
    1. Judgment—When a lien on decedent’s estate—Code Civ. Pro., § 1380.
    Section 1380, Code Civ. Pro., providing that no execution can issue to enforce a judgment which is a lien upon the real estate left by a deceased judgment debtor until the expiration of one year from his death, has the effect of extending the time provided by § 1251, during which the lien o£ a judgment continues, and in such a case the lien would continue for eleven years.
    S. Same.
    As § 1380 of the Code provides that where letters testamentary or of administration have been issued, the order granting leave to issue execution cannot be granted for three years, or if no letters issued, then for three years after death, the lien of the judgment under § 1355 would continue "for thirteen years.
    ■8. Same.
    The clause of § 1380, Code, which directs that it shall not apply to real estate which has been conveyed by the deceased judgment debtor during his lifetime in fraud of his creditors, etc., applies only to a case where the fraudulent deed has been adjudged fraudulent.
    Appeal from judgment of the supreme court, general term, ■first department, reversing order of special term denying motion :for leave to issue execution after death of defendant.
    
      David Thornton, for app’lt; Thos. J. Keighorn, for resp’t.
    
      
       Affirming 36 St. Rep., 535.
    
   Earl, Ch. J.

On the 26th day of October, 1880, John A. Holmes and others recovered a judgment against James Boyle for :$9,637.30, which was on that day docketed in the clerk’s office of the city and county of New York. Boyle died on the 26th day of January, 1881. On the 1st day of November, 1873, Boyle -owned certain real estate in the city of New York, and on that day he executed a deed thereof to Andrew Little, which deed was placed upon record. It is now claimed by Holmes, the petitioner, who has become the sole owner of the judgment, that that deed was not delivered to Little, and, therefore, never became operative, •or, if it was delivered, that it was fraudulent and void as to the •creditors of Boyle; that, therefore, the title to the real estate as between Boyle and his creditors remained in him, and that his judgment became a lien thereon.

On the 28th day of October, 1890, at a special term of the supreme court, Holmes obtained an order requiring the proper parties to show cause, on the 11th day of October, 1890, why an •order should not be made granting to him leave to issue an execution to enforce his judgment against the real estate described in the petition. Thereafter, on the nineteenth day of November, After hearing the parties, an order was made denying the petition. Holmes then appealed from that order to the general term, where it was reversed, and leave to issue the execution was there granted. From the order of the general term an appeal has been taken to this court, and the appellants claim that upon the facts appearing the court should not have authorized an execution for the sale of the real estate to be issued.

We do not think it was necessary for the court to adjudicate in this proceeding either that the deed was not delivered or that it was fraudulent. For the purpose of disposing of this matter the •court could, upon allegations and proofs tending in that direction, assume that one or the other claim was well founded, and grant the leave to issue the execution, and then Holmes could sell the real estate, and, having sold it, the purchaser at the sale could try the question whether the deed was fraudulent or had never been delivered in an action brought to recover the possession thereof. The decision of the court granting the leave asked for is not, therefore, a final adjudication binding upon the parties that the deed was not valid and effectual. That matter remains to be determined in some future litigation in which it may be properly involved.

The sole question for our determination now is whether or not at the time the order granting leave to issue the execution was made the judgment was a lien upon the land, assuming that it was the property of Boyle at the time of his death.

It is provided in § 1251 of the Code, that except as otherwise specially prescribed by law, a judgment docketed in the county clerk’s office binds and is a charge upon, for ten years after filing the judgment roll, and no longer, the real property and chattels real in that county, which the judgment debtor then owned or thereafter acquired, within the ten years. Section 1255 provides that the time during which a judgment creditor is stayed by express provision of law from enforcing a judgment is not a part of the ten years to which the lien of the judgment is limited. Section 1379 provides that an execution to collect a sum of money cannot be issued against the property of the judgment debtor, who has died since the entry of the judgment, except as prescribed in the next two sections, and in section 1380 it is provided that “ After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court from which the execution is to be issued.” Thus it is provided that no execution can issue, even by leave of the court, to enforce a judgment which is a lien upon the real estate left by a deceased judgment debtor, until after the expiration of one year from his death.

That year, therefore, cannot be counted as a part of the ten years specified in § 1251, and the lien of the judgment in such a case would continue for eleven years; and, therefore, it is clear that the lien of this judgment existed at the time the order was made giving leave to issue the execution.

But still further; the proceeding to enforce this execution was actually stayed for three years after the death of Boyle. It is provided in § 1380 that when letters testamentary or of administration have been issued upon the estate of the deceased judgment debtor, an order granting leave to issue the execution cannot be granted until three years after the issuing of such letters; and that when the judgment debtor died intestate, and letter’s of administration upon his estate have not been issued (and such is the case here), the order cannot be made until three years after his death; and thus the lien of this judgment under § 1255 continues for thirteen years.

Section 1380 also, contains this clause : “ But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors, or any of them, and any j udgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be declared fraudulent by the judgment and decision of any court of competent jurisdiction, may enforce his said judgment against such real property with like effect as if the judgment ■debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time,” as further provided in the section. The proper construction of this clause is not free from doubt. The judge presiding at the special term denied leave to issue the execution on the ground that the petitioner having alleged that the ■deed from Boyle to Little was executed in fraud of his creditors, this case is taken out of § 1380, and thus leave to issue the execution could not therefore be granted. At the general term it was held that this clause applied only to a case where the fraudulent deed had been adjudged fraudulent, and as the deed to Little had not been so adjudged the clause had no application to this ■case. Without being sure of the purpose and meaning of this ■clause, we are constrained to agree with the construction put thereon by the general term.

We therefore reach the conclusion that the order of the general term should be affirmed, with costs.

All concur.  