
    Frances B. Wallace and John F. Phillips, Resp’ts, v. Robert H. Berdell et al., App’lts Magaret C. Wallace, as Exr’x, etc., Res’pt, v. Robert H. Berdell, et al., App’lts
    No. 1.
    
    No. 2.
    
      (Court of Appeals,
    
    
      Filed March 8, 1887.)
    
    1. Judgment—Restitution op property on reversal op.
    Action No. 2 was instituted after the execution had been issued in action No. 1, for the purpose of setting aside a conveyence of real estate by the judgment-debtor and was successful, and the land was bought in by plaintiffs and other creditors, for a sum sufficient to satisfy both judgments. Execution in action No 1 was discharged of record. On appeal No 2, was reversed, a new trial directed and restitution of the real estate-to C. B., the original grantee ordered, also of the value of the rents and profits. The land was restored, but the rents and profits have not been. An order having been granted requiring the clerk to take the attachment and execution in action No. 1 from the files and deliver them to the sheriff and cancel the satisfaction. Reid, no error, that the fact that the rents-had not been returned to 0. B., did not avail as to plaintiff’s rights against, defendant.
    2. Same—New trial.
    A new trial having been ordered, plaintiff should be restored to the same position which she held at the time of the first trial.
    3. Same.
    
      Reid, that the judgment by means of which satisfaction was obtained, having been reversed and the property sold under it ordered to be restored, the original attachment and execution were necessarily revived.
    Appeal from an order entered upon the decision of the general term, second department, affirming an order of the special term directing the county clerk of Orange county to» cancel the satisfaction entered upon his docket of the judgment against Eobert H. Berdell, in the action first above entitled, and to remove from the files and deliver to James W. Hoyt, late sheriff of Orange county, an attachment against the property ■ of Eobert H. Berdell, issued in the same action, and an execution issued on the same judgment, and-also directing the said Hoyt to cancel certain portions of his returns upon these papers and proceed to-enforce them.
    
      Alfred Taylor, for app’lts; Bacon & Merritt, for resp’ts.
    
      
       Affirming 41 Hun, 444; 1 N. Y. State Rep., 564.
    
   Rapallo, J.

In the first of the above entitled actions the-plaintiffs, composing the firm of Wallace & Phillips, recovered a judgment against Eobert H. Berdell for about $9,000, and issued execution thereon-. They had also issued an attachment in the action against the property of the defendant therein.

After the issue of the execution, Wallace & Phillips, instituted action No. 2 for the purpose of setting aside a conveyance of certain real estate which had been conveyed. by William H. Berdell, the judgment debtor, to his son, Charles P. Berdell, and for other relief. They succeeded in that action in the supreme court, and obtained a judgment directing the sale of the real estate for the satisfaction of the amount remaining unpaid upon the judgment of Wallace & Phillips, and that such judgment be declared to be a hen prior to all claim of Charles P. Berdell, and of Lizzie A. Berdell, in whose favor William H. Berdell had confessed a judgment, which was an apparent' hen upon the property. The sale was made accordingly, and the property was bought in by Wallace & Murray, for the benefit of the plaintiffs and other judgment creditors of Berdell, for a sum sufficient to satisfy the judgments. The purchasers entered into possession and retained such possession for several years.

The execution and attachment which had been issued in action No. 1 were returned satisfied, and an entry was •made on the. docket of the judgment in No 1, discharging it of record. Wallace and Phillips having both died, the action was continued in the name of the present plaintiff as executrix of Wallace, the last survivor.

On appeal to this court the judgment in action No. 2, under which the sale had been made, was reversed and a new trial ordered and restitution was afterward ordered to be made to Charles P. Berdell, of the real estate sold, and of the value of the rents and profits during the time the purchasers had been in possession. Restitution was accordingly made of the land, but the rents and profits have not yet been restored.

The present motion was for an order requiring the clerk of Orange county to take from the files in his office the attachment and execution in action No. 1, together with the returns thereto, and deliver them to the late sheriff of said county, and to cancel the record of the satisfaction of the judgment and the returns to said attachment and execution. The motion was granted at special term. The order was affirmed at general term, and this appeal is from such affirmance.

The principal objection made by the defendants to the order is that it was erroneous, in any view, to grant it before the rents were restored. In so far as the order affects the judgment debtor, Robert H. Berdell, by restoring the execution and attachment against him,this objection is not available. He has no interest, as the case now stands, in the rents and profits, and cannot claim that they should be applied in satisfaction of the judgment and execution against him, inasmuch as the purchaser is liable to refund them to Charles P. Berdell, and has been ordered by the court so to do. The plaintiff cannot be bound to credit them on the execution while they are subject to the enforcement of the order of restitution. As to the other defendants, the objection is that a new trial having been granted in action No. 2, they are entitled to insist that the execution has been satisfied, and, therefore, the plaintiff is not in a position to maintain a creditor’s bill. That point operates rather to support the order than to overthrow it. A new trial having been ordered the plaintiff should be restored to the same position which she held at the time of the first trial. If the judgment has been paid, the defendants are at liberty to prove that defense on the new trial, and the amount unpaid, should it become material, can be shown. Certainly Charles P. Berdell, the principal defendant, cannot insist upon the entry of satisfaction being retained on account of the rents collected, while he is pursuing the fund arising from those rents. It is claimed that all that was sold was the right, title and interest of Robert H. Berdell in the real estate sold. That there is no warranty on a sale under execution, and that the debtor is entitled to have the proceeds applied in satisfaction of the judgment, even though the title of the purchaser fails. That would be the case in an ordinary sale under execution where the judgment remained unreversed and restitution had not been ordered.

But in the present case the record which was before us on the appeal in action No. 2 showed that the sale was not on execution, but under the special decree or judgment in that case, and that it was a sale not merely of the right, title and interest of Robert H. Berdell, but of the real estate itself, free and discharged of all claim of Charles P. Berdell and the other defendants in the action. Under such a sale the purchaser would have a right to such a title as the judgment purported to authorize to be sold. The judgment, by means of which satisfaction was obtained, having been reversed and the property sold under it ordered to be restored, the original attachment and execution were necessarily removed, and the order appealed from was proper.

The order should be affirmed, with costs.

All concur. _  