
    Aaron P Bates, App’lt, v. The Ledgerwood Manufacturing Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 16,1889.)
    
    Judgment—Pubohaseb’s interest not the subject op lien.
    The interest that a purchaser has in real estate, whose right to a deed has not accrued by full payment of the purchase-money, is not the subject of a lien by judgment against such purchaser.
    Appeal from a judgment entered upon the verdict of a jury, rendered at the King’s county circuit.
    This action was brought to recover back possession of real property unlawfully withheld by the defendant from the plaintiff.
   Barnard, P. J.

—Assuming that the trial court should have admitted the decree in the New Jersey court of chancery, and the pleading upon which it was based, and assuming further that the deeds executed thereunder, should also have been received, the evidence fails to show a title in the plaintiff. He derived his title from a purchaser at a sheriff’s sale, under a judgment against a domestic corporation of this state, known as the Fibre Disintegrating Company.

The judgment was recovered on the 16th of March, 1861. The lands are situated in Kings county, where the judg ment was filed, but that company are not shown to have had either a legal title or interest in the land, which could be sold on execution against it.

The pleadings and the decree of the court of chancery above referred to, all agree that the title was purchased by one Robert W. Russell. It was subject to certain mortgages. On the 17 th of March, the Fibre Disintegrating Company, resolved to assume the purchase. In May, 1864, the company, advanced §1,400, which was paid the grantee of Russell, and the company, after that date and before the bill in chancery was filed in 1867, paid the interest on the mortgages.

The company was in possession under this arrangement, and when a bill was filed, Russell, held the title to secure the mortgage debt upon it and some back interest. There were some taxes unpaid, and Russell held the land for that, and there was an engine on the premises which Russell had the right to remove. In this state, the chancery bill was filed and a decree was made that a receiver be appointed and that Russell convey, when the mortgage was paid, with the back interest upon it, other moneys expended “on account of his legal ownership or expended in the care and preservation thereof,” and after taxes should be paid. There was also a permission that the question of the removal of the engine was first to be settled.

The deeds go no further than the decree in any admission of facts. Russell obeyed the court of chancery, upon the receipt of what was due him, not as trustee but as purchaser, who had offered the corporation the benefit of the purchase, and it had agreed to assume it. The Fiber Company was the purchaser from Russell, with the purchase money partly unpaid, and the interest thus acquired is by statute not the subject of a lien by judgment against the Fiber Company. 1 R. S., 736, § 4.

The principle is fully established in Sage v. Cartwright (9 N. Y., 49), where a large number of authorities are cited and appear. The case of Grosvenor v. Allen (9 Paige, 74) is very similar to the present case.

A purchaser of real estate whose right to a deed had not accrued by full payment became indebted and a judgment was obtained on it. Subsequently the debtor made a general assignment. It was held that the judgment was not a Hen. ■ The debtor was in possession, making improvements on the property in anticipation of the completion, of his contract. The case varies from those cited by the appellant, to the effect that a fraudulent transfer of a title by a debtor may be reached by a judgment and bill to set aside conveyance or by ejectment and proof of a fraud in that action.

The judgment should therefore be affirmed, with costs.'

Pratt, J., concurs.  