
    BROWN against NICHOLS.
    
      Court of Appeals,
    
    
      March Term, 1870.
    Attorney and Client.—Unauthorized Appear.anoe.—Judgment.—Action against Lunatic.— Lien of Creditor’s Suit.—Abatement and Revivor. — Power of Attorney. — Effect of Principal’s Insanity.
    A judgment in a personal action, against a defendant who was not served with process, but for whom an unauthorized attorney appeared, must be regarded, in this State, as binding in a collateral-action, unless some good reason is shown for not seeking relief in the original action.
    
    A lunatic, both before and after a committee has been appointed over him, may be sued, and judgment entered and enforced against him as if he were sane, unless restrained by the court whose ward he is.
    A judgment creditor, by his creditor’s suit, gets a lien on the equitable interests and things in action of a lunatic debtor.
    The lien is not lost by the death of the debtor, pending the suit, and. before a receiver has been appointed, but continues against his personal representative, and the suit may be revived to enforce it. The cases of Sylvester v. Beed, 3 Bdw. Ch., 236, and Mathews n. Neilson, Id., 346, overruled.
    A power of attorney is not revoked by the subsequent insanity of the ■ principal; and the transactions of the agent after the insanity of the principal, and before inquisition, with persons ignorant of the insanity of the principal, are binding upon the principal.
    Appeal from a judgment.
    This action was brought by John Carter Brown against Aaron D. Patchin, George W. Tifft and others, and on the death of Patchin, was continued against Asher P. Mchols, as administrator, &c. of Aaron D. Patchin, deceased. It was a creditor’s action to enforce the collection of the judgment against Aaron D. Patchin for ten thousand eight hundred and eighty-seven dollars and two cents, hereafter mentioned. It was brought in the supreme court, and was tried before the Honorable Joseph G. Hasten, to whom the action was referred, to hear and determine the same, who, after hearing the proofs and allegations of the respective parties, found the following facts :
    This action was commenced on December 9, 1862. Aaron D. Patchin was served with the summons herein on December 10, 1862.
    On December 22,1862, Isabella Patchin, the wife of said Aaron D., presented to the superior court of Buffalo her petition, alleging that he was a lunatic, and praying that a commission issue to inquire into the alleged fact; and such proceedings were thereupon had that he was adjudged to be a lunatic, and to have been a lunatic from June 1, 1862 ; and on January 24, 1863, Mrs. Isabella Patchin was appointed the committee of his person and estate;
    On February 18, 1863, Mrs. Isabella Patchin was appointed by the supreme court his guardian in this action, and acted as such until his death.
    On April 27,1863, Mrs. Patchin, as the committee of Ms person and estate, was made a party defendant to tMs action.
    The said Aaron D. Patchin died on July 27, 1864, intestate, and letters of administration on his estate were duly issued to the defendant Asher P. Nichols.
    On June 22, 1865, this action was revived, by an order of the court, against Nichols, as such administrator, and the name of Mrs. Patchin, as such committee, was stricken out as a defendant to this action.
    The plaintiff had recovered judgment on November 9, 1861,- against Mr. PatcMn, in an action commenced on September 7, 1861, by him, to foreclose a mortgage given to him by Mr. Patchin. The land embraced in the mortgage was sold, by virtue of the said judgment, on December 5, 1861, and a judgment for deficiency, being the sum of ten thousand eight hundred and eighty-seven dollars and two cents, was docketed on'December 12,1861. An execution was issued to collect such deficiency, and returned unsatisfied.
    On the sale of the land in the foreclosure action, the plaintiff bid off the same for the sum of two thousand dollars. The land was, at the time, worth the sum of seven thousand dollars, and the plaintiff, before the commencement of this action, sold the premises on credit for that sum, accompanied with a loan of ten thousand dollars, payable in ten years. The summons in the action brought by the plaintiff to foreclose the mortgage, was never served upon Mr. PatcMn.
    
    Solomon Gr. Haven, a responsible attorney of this court, appeared for the said Mr. Patchin, in the said action, without his authority or knowledge.' Mr. Patchin, at that time, was a resident of the city of Buffalo, but was then absent from the city. William F. Miller, the attorney for the plaintiff in said action, for the purpose of serving the summons in said action upon Mr. Patchin, inquired, in the month of September, 1861, of some member of Mr. Patchin’s family, for Mm, and was informed that he was then sick at Clifton Springs, and that they did not want him to be annoyed by the service of process upon him, and that "Mr. Haven would appear for him.
    Mr. Patchin was then in fact at Clifton Springs, in this State, for the benefit of his health. Mr. Miller * o _ thereupon called upon Mr. Haven, stated to him what a member of Mr. Patchin’s family had said to him, and asked Mr. Haven to appear for Mr. Patchin in the said action, and handed to Mr. Haven a written notice of appearance to sign. Mr. Haven refused to do so, saying he had not any directions to appear in the action. Mr. Miller, in a few days thereafter, again called upon Mr. Haven, who then said he had authority to appear, and signed the notice of appearance, left with him aforesaid, and gave it to Mr. Miller. Mr. Miller acted in good faith. Mr. Haven died on December 34, 1881. The said Aaron D. Patchin had not any defense to the said action.
    Prior to the commencement of the action to foreclose the mortgage, the Chautauqua County Bank had recovered and docketed a judgment against the said A. D. Patchin for twenty thousand and eleven dollars and sixty-three cents, so as to be a lien on the mortgaged lands.
    The charter of the bank expired January !, 1860 (wMch fact was unknown to the plaintiff until after said sale), and the effects of the said bank vested in the directors thereof, as trustees of the creditors and stockholders of said corporation. The directors individually were not made parties to the said action, but the bank, in its corporate name, was made defendant in such action. The plaintiff, after he bid in the mortgaged premises, and received a deed thereof, in March, 1861, commenced an action in the supreme court against the trustees of the bank, for a strict foreclosure of the mortgage, but did not make Mr. Patchin a party thereto; and such proceedings were thereupon had that judgment was, on May 3, 1862, entered in the action, requiring the trustees to redeem the mortgaged premises from the mortgage in thirty days, by paying the sum of twelve thousand seven hundred and ninety-nine dollars and twenty-six cents, being the amount of, principal and interest due upon the mortgage, or be forever barred- of all equity of redemption therein. The trustees did not redeem.
    On April 24, 1861, Mr. Patchin, by a sealed instrument dated that day, appointed his son, Thaddeus D. Patchin, his general attorney.
    Aaron D. Patchin, being largely indebted to the Chautauqua County Bank, pledged to them, as security, divers stocks and things in action. •
    On July 16, 1862, the indebtedness of Aaron D. Patchin being unpaid, the trustees of the,bank, at the request and with the assent of the said Aaron, by his attorney, Thaddeus D. Patchin, sold at private sale, and for value, and delivered, the said stocks and things in action to the defendant George W. Tifft.
    On October 15, 1862, Aaron D. Patchin, by his said attorney, Thaddeus D. Patchin, for value, sold to the said Tifft divers shares of the capital stock of the Buffalo, New York & Erie Railroad Company, and other property.
    This action, after the appointment of the committee of the estate of Mr. Aaron D. Patchin, was prosecuted with the permission of the superior court of Buffalo, o The said committee, on May 29, 1863, brought an action in the said superior court of Buffalo against said Tifft and the trustees of said bank, to set aside the sale by the trustees of the stocks and things in action to ■ Tifft, on the ground that it was made privately and without the consent of Aaron D. Patchin.
    On June 19, 1863, the committee, under the authority and sanction of the superior court, made a settlement with Tifft of that action and the subject matter thereof. By such settlement the sale was ratified, and Tifft paid to the committee the snm of thirty thousand dollars, and covenanted with the committee that if the plaintiff in this action should recover final judgment herein, that any money or property of Aaron D. Pat-chin must be applied on his judgment, that he, Tifft, would satisfy the said judgment of this plajintiff to the extent of the money or property so adjudged to be applicable.
    The said Aaron D. Patchin, from Jun^ 1, 1862, to the time of his death, was insolvent and a lunatic.
    At the commencement of this action Aaron D. Pat-chin owned eight second mortgage bonds of the Buffalo, New York & Erie Railroad Company,- amounting to the principal sum of eight thousand dollars, which bonds have .come to, and are in the handá of, the defendant Asher P. Nichols, as administrator as aforesaid. The interest on these bonds has beeij, from time to time, collected by, and paid to, said Nichols, as such administrator, to November 1, 1868, and the same now remain in his hands, amounting to the sum of two thousand four hundred and twenty-five dollars and seventy-three cents.
    No receiver has been appointed or applied for in this action.
    The said bonds are worth, in the market, eighty cents on the dollar. They, and said interest money in the hands of Nichols, were all the property that is reached by this action.
    The referee decided, as matter of law,
    That the judgment recovered by the plaintiff against the said Aaron D. Patchin, as aforesaid, is valid and binding.
    The difference between the actual value of the mortgaged premises and the price they brought at the judicial sale of them, cannot be allowed in this action.
    Nor, from the amount of the property reached in this action, is the question material.
    That the plaintiff, by the commencement of this action, obtained a lien upon'the said eight bonds in the hands of the said defendant Nichols, as aforesaid.
    That such lien has not been divested, and the said bonds and money are in his hands subject to such lien.
    That judgment must be entered in favor of the plaintiff against the defendant Nichols, as administrator as aforesaid, establishing the plaintiff’s lien upon said bonds and interest money in the hands of the said Nichols, and directing that the same be applied towards the payment of the said judgment of the plaintiff against the said Aaron D. Patchin, and that a receiver be appointed.
    The defendant A. P. Nichols, administrator, &c., excepted to the several rulings of law made by the referee.
    
      A. P. Leming, for the plaintiff.
    A. P. Nichols, in person.
    
      J. Ganson, for defendant Tifft.
    
      W. Lorsheimer, for trustees of Chautauqua County Bank.
    
      
      The justice of this rule questioned, in its application to cases where process was not personally served, and the authorities reviewed^, by Hasten, Referee.
    
   Masten, Referee,

delivered the following opinion:— I am satisfied with the law in this State, as declared by the courts, in the cases where an unauthorized attorney appears, for a party who has-been duly served with process in' the action. In such cases there is no question in respect to the jurisdiction of the court over the person. The court, having jurisdiction of the subject matter, obtained, by the service of its process, jurisdiction of the person. It has then that .complete jurisdiction essential to the validity of its judgment in personal actions, to wit: jurisdiction of the person and of the subject matter of the action. !

But I am unable to appreciate either the ¡logic of the argument, or the necessity to “the scheme and plan of the administration of justice,” by which jit is established that a person who has not been servéd with process, or notified in the manner prescribed by law to appear in the action, can, by a judgment therein, be deprived of his property, because an unauthorized attorney at law appeared in the action for him.

On the contrary, the proposition is, to my mind, monstrous. It violates the first principles of natural justice. ■ It conflicts with the fundamenta, principle,that “no person shall be deprived of life, liberty or property, without due process of law.” Instead of being• “a rule important to the safe administration of justice,” it seems to me to be dangerous and pernicious.

There are decisions in the English courts holding that a defendant who had no notice of the action, but for whom an unauthorized attorney at law appeared, is bound by the judgment therein, but the rule has been exploded there (Robson v. Eaton, 1 T. R., 62; Bayley v. Buckland, 1 M. H. & G. Exch., 1).

It would seem that the supreme court of the United • States regards a judgment rendered under such circumstances void. In Osborn v. Bank of the United States, 9 Wheat., 738, 741, 752, Chief Justice Maes: sale said: “Natural persons may appear in court, either by themselves or by their attorney. But no man has a right to appear as the attorney of another man without the authority of that other. In ordinary cases the authority must be produced. The case of an attorney at law, an attorney for the purpose of representing another in court, and prosecuting or defending a suit in his name, is somewhat different. The power must indeed exist, but its production has not been considered indispensable.”

In Shelton v. Tiffin, 6 How. U. S., 163, 186, a judgment came under consideration, which had been rendered against a defendant who had not been served with process, but for whom an attorney had appeared without authority. The court said : “He (the defendant in the judgment) is not bound by the proceedings, and there is no other principle which can afford him ample protection. The judgment, therefore, against him must be considered a nullity, and consequently did not authorize the seizure and sale of his property.”

By the Constitution of the United States, “full faith and credit” are to be given in each State to the public acts, records and judicial proceedings of every other State; and Congress is authorized to provide the manner in which such acts, &c. shall be proved, and the effect thereof. Congress in 1790 enacted that such reéords and judicial proceedings shall have “such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from which the said records shall be taken.”

The obvious effect of these provisions is to cause judgments recovered in one State to be regarded in every other much in the same light as domestic judgments.

In both the Federal and State courts it is settled, that in an action in one State upon a judgment rendered by a court of another State, the defendant in the judgment may assail the jurisdiction of the court which rendered the judgment, by showing that he was not served with process, and that the attorney at law who entered an appearance for him had no authority to do so; and that this being shown, the judgment is a nullity, and entitled to no faith or credit (See the masterly opinion of Judge Marcy, in Starbuck v. Murray, 5 Wend., 148).

The question of jurisdiction is always open to inquiry, and to my mind the reasoning in the case of Starbuck v. Murray is equally as applicable to a domestic judgment as to a judgment rendered by a court of a sister State. A judgment recovered upon.a substituted service of process upon the defendant, authorized by the statutes of the State in which the judgment was rendered, might be regarded as a valid personal judgment in such State, while it would receive no faith nor credit in another State.

But that is not the question under consideration. The manner in which the courts of this State can obtain jurisdiction of the person, is prescribed by statute; and it is enacted, that “a voluntary appearance of a defendant is equivalent to personal service of the summons upon him” (Code, § 139). An unauthorized appearance is not a voluntary one.

By the common law, actions could only be prosecuted and defended by the plaintiff and defendant in person.

The right to appear by attorney was givfen by statute, which required the attorney to file his warrant of attorney with the clerk or other proper oificer of the court.

The first act in this State, on the subject, was passed February 20, 1787 (1 K. & R., Revised Laws, 356). Section 1 of that act authorized persons to appear and prosecute and defend by attornery. Section 2 provided that the warrant of attorney should be taken before some court or judge, &c. 'Section 8 required ' ney, who appeared for the plaintiff, to file 1 is warrant of attorney at the same term at which he declares, and the attorney for the defendant to file his warrant the same term he appears ; and it made the attorney who neglected to file Ms warrant of attorney pursuant to the requirements of the act, liable to a fine, “and also to make satisfaction to the party aggrieved.”

This act was substantially re-enacted in the revision of 1813 (1 Rev. Stat., 416). In the revision of 1830, it was enacted'that “it shall not be necessary to file any warrant of attorney” (2 Rev. Stat., 351). The reason assigned by the 'revisors for the change is, that “a warrant of attorney is never filed in practice.”

Sellout, in Ms Practice, says: “Originally there was a regular formal method of appointing an attorney, wMch indeed ought still to be observed. The warrant unquestionably answered many good purposes. To the court, it was evidence of the authority of the attorney employed. To the attorney it was a voucher of his appointment, and of itself, a retainer by his client. To the subject in general, it was a beneficial check to the bringing or carrying on of suits in persons’ names, without their privity or consent. The practice, however, not only of filing, but even of taking these warrants of attorney, is at this day, for the most part, disused. But, perhaps it might be better and safer, if the old practice, in this respect, was more strictly adhered to, and greater caution used by attorneys (Robson v. Eaton, 1 T. R., 62.)

This shows that an innocent attorney may suffer, and also the necessity of caution on the part of the defendant himself; and that it is always advisable to be satisfied that the action is in fact brought at the instance of the real plaintiff. If the attorney had not been a responsible person, the defendant, Eaton, must have submitted to the loss.” The case of Robson v. Eaton was thus : One Davis went with a forged power of attorney to an attorney at law, and commissioned him to bring an action in favor of Robson against Eaton. The attorney accordingly did so, and the defendant paid into court a certain sum of money, wMch the said attorney at law took out of court and paid to the said Davis. After which this action was brought by the plaintiff himself against • Eaton, for the original debt. Lord Mansfield, Ch. J.: “ There can be no doubt upon this case. The attorney who trusted to the warrant of attorney, is liable; and Davis, who. committed the forgery, is liable to him. The record amounts to no more than this : that the attorney comes to prosecute the said suit in the plaintiff’s name. It does not state the authority given him by the plaintiff for so doing. Judgment for the plaintiff.”

But it is. useless, perhaps more than useless, for me, in "my humble position, to discuss this question. I shall therefore only refer to the able article upon the subject in the May number of the American Law Register for the year 1866.

I am of the opinion that it is settled by decisions in this State, that' a judgment rendered against a defendant, who was not served with process, but for whom an unauthorized attorney at law appeared, is valid ; that it cannot be impeached collaterally; and only directly, by showing that there is a defense which could have been interposed if the defendant had had notice of the action (Denton v. Noyes, 6 Johns., 296; Hamilton v. Wright, 37 N. Y. 502).

It certainly must be a ■ poor satisfaction for one whose rights have been affected, to know that the attorney who appeared for him without authority, is an officer of the court, and a member of an honorable, though now somewhat numerous, profession ; and that he may engage in a difficult action one whose business is the law.

The objection to the validity of the judgment for the deficiency, and the claim that the plaintiff should account for or deduct from his judgment the difference between the actual value of the lands and the price at which they were struck off to the plaintiff at the judicial sale, were first made by the answer put in by the defendant Nichols, after this action was revived against him, as the administrator of Patchin. They were not raised by the answer of Patchin or of his committee. When an attorney puts in an appearance for a person without authority, the objection should be taken upon the first opportunity, or the appearance may be considered as acquiesced.in, and the act of the attorney ratified.

The sale was on December 5, 1861, and this action was revived against the defendant, Nichols, on June 22, 1865. It is not alleged that there was any fraud, or that the salé was not openly and fairly conducted. It took place six months before Patchin became a lunatic. The Chautauqua County Bank was made a party defendant in its corporate name, the name in which the judgment was recovered, instead of that of the trustees who had succeeded to its rights. It is not alleged or shown that this in any degree affected the sale. In the action for strict foreclosure against the trustees, it is stated that the dissolution of the bank, and the fact that trustees had succeeded to its rights, were not known toplaintiff until after the sale. The right then to make the plaintiff account for, or allow the difference between his bid and the value of the land, which is in effect opening the sale, rests upon the fact that there was a difference. I think the right does not exist. From the amount of property reached, it is not material in this action.

I am of the opinion that the power of attorney from. Aaron D. Patchin to Thaddeus D. Patchin, conferred upon the latter authority to make the sale of the 629/?0 shares of the capital stock of the Buffalo, New York & Erie Railroad Company, &c., to George W. Tifft; and that that sale is valid.

I am also of the opinion that, by virtue of that power of attorney, Thaddeus D. Patchin had authority to consent to the sale made by the trustees of the Chautauqua County Bank to George W. Tifft of the securities pledged to said bank, and that the sale is valid.

At the time of these transactions Aaron D. Patchin was a lunatic, and if1 they had been made with him personally, it is possible that they would have been voidable, if not void. But the power of attorney was not revoked by that fact; no inquisition had then been found, and it does not appear that Tifft or the trustees of the bank were cognizant of Patchin’s lunacy (2 Kent Com., 645, and notes).

The complaint in the action brought by the committee of Mr. Patchin against Tifft and others to set aside the sale to him by the trustees of the bank of the securities pledged to the bank, puts the invalidity of the sale on the ground that it was made privately and without the knowledge and consent of Aaron D. Patchin. Upon the proofs in this case, and the construction I have given to the power of attorney, that action could not have been successfully maintained, and hence- the plaintiff has no claim to the money paid by Tifft to the committee, upon the settlement of that suit.

Actions may be maintained by and against a lunatic ; if a lunatic sue, it is said that he must appear in person ; and any one who prays to be admitted as his Mend, may sue for him; so if an action be brought against him, he must appear in proper person; and any one who can make a better defense shall be admitted to defend for him ; if he pleads by attorney, and the parties proceed to trial, the verdict and judgment will bind him. He may be arrested on civil process, and will not be discharged on common bail (Shelf. on Lunatics, 395; Mitf. Pl., 29-103; Steele v. Allen, 2 Bos. & P., 362; Kennett v. Norman, 2 Durnf. & E., 390 ; Nutt v. Bonny, 4 Id., 121; Faulkner v. McClure, 18 Johns., 400 ; Bush v. Pettibone, 4 N. Y. [4 Comst.], 300).

Even after a committee has been appointed the lunatic may be sued, and the action prosecuted to judgment, and his property levied upon and sold by virtue of an execution upon such judgment.

The estate of the lunatic does not pass to or vest in the committee, but remains in him. The committee is but his bailiff or servant, acting under the direction of the. court, by which the committee was appointed. Such court can restrain all persons from suing its ward or from meddling with his property, and punish contempt of its orders. But unless thus prevented any person may enforce, by action, his rights against a lunatic the same as if he were sane. A plea that a committee had been appointed would be bad (Sternberg v. Schoolcraft, 2 Barb., 153; Cuppers v. Calvin, 4 Id., 424).

This action was commenced before the commission to inquire into the state of Mr. Patchin’s mind was issued; indeed, before the application was made to the court for it. By the inquisition it was found that Mr. Patchin was a lunatic prior to the commencement of this action, and the court out of which' the commission issued, could probably have enjoined all further proceedings in the action, and thus have overreached it; or it could allow the action to proceed. It does not appear that the court interfered with the prosecution of the action. Indeed, it appears that it allowed it to proceed.' The committee was appointed the guardian in this action of the lunatic, and acted as such until his death. It must be presumed that the committee did so with the saction of the court, whose officer she was.

The settlement made, under the sanction of the court, by the committee with Tifft, of the action brought by the committee against Tifft and others, contemplates the prosecution of this action to judgment. One of the provisions of that settlement is, that Tifft is to covenant with Patchin and his committee, • that if the plaintiff should recover final judgment in this action, that any money or property of Patchin’s must be applied upon his judgment; that he, Tifft, would satisfy the judgment to the extent of the money or property so adjudged to be applicable. Upon the death of the lunatic the power of the committee ceased, and his real estate went to his heirs, and his personal estate to his personal representative in the same manner as if he were of sound mind (2 Rev. Stat., 55).

I do not see how the commission of lunacy now affects this case. This suit was commenced before the commission was issued; its prosecution was not interfered with, but on the contrary, was sanctioned by the court out of which the commission issued, and it was pending and undetermined when the commission' ended.

It seems to me that the case must now be considered and determined as if no commission of lunacy had ever issued, and, as if Mr. Patchin was of sound mind at the time of the commencement of this action, and at the time of his death. Is the plaintiff or the administrator of Mr. Patchin entitled to the choses in action and equitable interest, which Patchin had at the time he was served with process in this action? The inquiry is important to the plaintiff in a pecuniary point of view, and involves an important principle.

I find two cases upon the point decided by the vice-chancellor of the first circuit; one of which, it is said, was affirmed by the chancellor on appeal. They sustain the claim of the administrator (Sylvester v. Reed, 3 Edw. Ch., 236; Mathews v. Neilson, 3 Id., 346).

It is possible,.that as a referee, I should follow those decisions without questioning them. They are unsatisfactory to me. My decision upon this point, be it what it may, will be brought under review by the court whose officer I am. If I follow those decisions, and the court upon review should overrule them, a new trial will be necessary. If I do not follow them, and the court upon review should sustain them, it will put an end to this suit. I have therefore determined to dispose of the question according to what I believe the law to be. I am encouraged to this course by the fact that this court has, contrary to those decisions, revived this action against the administrator of Patchin. The plaintiff, by the commencement of this action, acquired an equitable lien upon the equitable interest and things in action, which the debtor had at the commencement of the action.

The action, in the language of some of the judges, is “an attachment of property which cannot be levied on at law.” It is an equitable execution upon the judgment against the equitable interests and choses in action of the judgment debtor, and is a lien thereon from the time of its commencement.

The authorities are carefully collected and analyzed in Storm v. Waddell (2 Sandf. Ch., 494, 510), and establish the lien (see, also, Clark v. Rist, 3 McLean, 494; Dormer v. Brachette, 21 Vt., 599, 635; Peck v. Jenness, 7 How. U. S., 612, 620).

In the cases in Edw. Ch., it is conceded that an execution creditor acquires by his suit an equitable lien on the property of the debtor. The learned vice-chancellor, after making■ this concession, says: “But this lien ought not to be permitted to interfere with the legal rights of others, where they happen to come in conflict. If it were a lien in law, and the property in the possession, under such lien, then I admit that the personal representatives of the deceased debtor would take subject to such lien, and the creditor having the lien would be entitled to it, despite the statute. So if. a receiver has been appointed, and has obtained possession of the property of the debtor before his death.”

The vice-chanceEor cites 2 Rev. Stat., 87, § 27.

How that section, and the article in which it is found, in no way declare what are assets in the hands of an administrator. The section referred to, merely prescribes the order, in which the administrator is to pay the debts of the deceased.

The question before , the vice-chancellor was, and before me is, what are assets in the hands of the administrator ? and not, how is he to distribute them ?

The administrator stands in the place of his intestate, and takes his property subject to all legal and equitable Eens and charges thereon. The administrator, as the representative of the creditors of his intestate, may assaE the dispositions made by his intestate of his property, in fraud of his creditors, with this exception—he succeeds only to the rights of his intestate. Again: It is a weE settled principle in our jurisprudence, that a prior equitable right or Een prevaEs over a subsequent legal right The exception is when the subsequent legal right is asserted by a bona fide purchaser.

The principle has been estabEshed in different classes of cases. A famEiar class is that of the vendor of lands, enforcing his equitable lien for the unpaid purchase money.

An assignee of a chose in action, after creditor’s suit against the assignor, takes subject to the lien of the suit (Utica Ins. Co. v. Powers, 3 Paige, 365). Again: Possession is not essential to the vaEdity of the Een acquired by the commencement of a creditor’s suit.

In Peck v. Jenness (supra), Judge Grier, in deEvering the opinion of the court, said: “At common law there can be no lien without possession. It is there defined (Hammond v. Barclay, 2 East, 235), a right in one man to retain a thing in his possession, belonging to another, untE certain demands of him, the person in the possession, are satisfied. In maritime law, liens exist independently of possession, either actual or constructive. In courts of equity the term, lien, is used as synonymous with a charge or incumbrance upon a thing, where there is neither Jus in re, nor ad rem, nor possession of the thing. Hence a judgment, which by virtue of the statute of Westminster, 2nd (commonly called elegit), is a charge upon the lands of a debtor, is called in the courts of equity in England, and in the courts of law of many of these States, a lien; and executions which bind the personal property of the debtor, after their delivery to the sheriff, are termed liens, both before and after the property is seized and taken into custody of the law by its officers.”

An execution (except as against a bona fide purchaser) is a lien upon the property of the debtor from its delivery to the sheriff (2 Rev. Stat., 366, §§ 13-17; Ray v. Birdseye, 5 Den., 619).

To preserve this lien, the sheriff must make his levy before the return day of the execution.

If the debtor should die after the delivery of an execution against his property to the sheriff, and before actual levy of it, I do not suppose it would be seriously contended that the lien of the execution was lost, and that the sheriff could not after the death of the debtor, and before the return day of the execution, make his levy, but that the property was transmitted to the administrator, discharged of the lien.

In Savage v. Best (3 How. U. S., 111), it was ruled that an act of bankruptcy, by the execution debtor after the delivery of the execution to the sheriff, but before the levy of it, did not defeat the lien of the execution, and that the assignee in bankruptcy took subject to the lien.

Where the choses in action of the defendant were attached by virtue of the provisional remedy of attachment under our code of procedure, but no possession of them taken, and afterwards, and before judgment, the defendant died, it was held that the lien of the attachment was not lost, and that the administrator took subject to the lien (Thacher v. Bancroft, 15 Abb. Pr., 243).

I think the cases in Edwards' Chancery Reports did not meet the approval of Vice-Chancellor Sandfoed (Storm v. Waddell, supra, 517). They were decided before the bankrupt act of 1841. That act brought liens of every description, including liens by creditors’ bills under the consideration of the Federal and State courts, and the nature and effect of liens have been defined and established by them. The right, which the plaintiff secured, by his diligence, to the equitable interests and things in action of his judgment debtor, did not abate and was not lost by the death of the debtor. The choses in action and equitable interests which Mr. Patchin had at the time of the commencement of this action, are assets in the hands of Ms administrator, subject to the plaintiff’s lien upon them.

I cannot in this action determine the rights between the administrator of Patchin and Tifft, under the agreement of Tifft, of June 19, 1863, to satisfy the plaintiff’s judgment to the extent of the property which should be adjudged in this action to be applicable upon it. I know of no principle that would authorize it, and there is nothing in the pleadings presenting'the question.

There must be judgment for the plaintiff against the defendant Nichols, as administrator, establishing the plaintiff’s lien upon the equitable interests and things in action of PatcMn, at the time of the commencement of this action, and that a receiver be appointed. There must be judgment for all of the other defendants, without prejudice to the defendant Mchols, administrator, to sue defendant Tifft, upon the agreement of June 19.1863.

All the parties to have costs out of the fund.

From the judgment entered upon the report of the referee, the defendant Asher P. Nichols, as administrator of, &c. appealed to the general term of the supreme court, where the judgment as to the defendant Nichols, administrator, &c., was in September, 1869, reversed, and a new trial ordered.

The case was argued in the supreme court by

A. P. Leming, for respondent.

John Oanson, for appellant.

Lamont, J.,

delivered the opinion of the court.— The only appellant in this case is the administrator of Aaron D. Patchin, deceased, and the only questions before this court for review arise upon conclusions of law from facts found by the referee, none of the evidence taken upon the trial having been incorporated in the case. This action is the usual judgment creditors’ suit instituted after execution returned unsatisfied against the property of Aaron D. Patchin in his lifetime upon a judgment in this court, in the plaintiff’s favor, against Patchin, who died intestate. The judgment referred to was recovered for a deficiency in a foreclosure suit after the sale of the mortgaged premises based upon the bond and mortgage of Patchin to the'plaintiff, given July 2, 1854, to secure the payment of ten thousand dollars and interest.

[His honor here recapitulated the findings of the referee, which we have previously recited.]

The appellant excepts to the referee’s decision that the judgment recovered by the plaintiff against Aaron D. Patchin in the foreclosure suit, is valid and binding.

The objection of the appellant is placed upon the want of authority of Haven to appear in that action as the attorney of Patchin.

It will be observed that the referee finds in terms that the plaintiff’s attorney acted in good faith in respect to Haven’s appearance; that is, in other words, that he believed that Haven spoke the truth when he told plaintiff’s attorney that he had authority, and gave the regular notice of retainer; and no one can doubt for a moment that Haven did believe he had the proper authority. The referee further finds as a fact, that Patchin had no defense in the action, and that Haven was responsible.

That the judgment obtained against Patchin in that suit was valid and binding under these circumstances, was settled by the decision of the supreme court in 1810, and has been the law of this State repeatedly recognized since that time (Denton v. Noyes, 6 Johns., 296; Grazebrook v. McCreedie, 9 Wend., 440; Acker v. Ledyard, 8 N. Y. [4 Seld.], 65; Bates v. Voorhees, 20 N. Y., 528; Hamilton v. Wright, 37 Id., 502).

The reason and foundation of this rule, and the objections to it, are considered by Chief Justice Kent in the first cited case, where its proper modifications are also established, and nothing further need be added in the present case. The same rule is emphatically reaffirmed in the court of appeals, in Hamilton v. Wright, above cited, in 1868, and cannot now be shaken.

The referee decided that the difference between the actual value of the mortgaged premises and the price they brought at the judicial sale of them, cannot be considered in this action. The correctness of this finding by the learned referee, would seem to follow as a legitimate conclusion, from the validity and binding nature of the judgment under which such sale was had, and the further finding of the referee in the same connection, that from the amount of property reached by this action the question of difference between the actual value and the price bid for the premises at the judicial sale, is not material, becomes one of no legal importance.

The judgment for deficiency upon which the present action is based, was recovered before the question of Patchin’s lunacy arose and this action was commenced, and the summons served on Patchin before any application had been made to procure the commission of lunacy against him.

The referee in this case has shown in the able opinion annexed to this case that Patchin’s lunacy has no bearing upon the question involved in this appeal. A guardian was appointed to protect his interests, and his committee was also made a party defendant, and after his death his administrator was substituted defendant as bis successor in interest.

The referee decided that by the commencement of this action the plaintiff obtained a lien upon the eight bonds before mentioned, now in the hands of the administrator of Patchin ; that such lien has not been divested ; and that said bonds and interest in the hands of the administrator are still subject to such lien, notwithstanding the death of Patchin pending the action, and before the judgment or trial; and he has directed a judgment in plaintiff’s favor against the administrator, establishing such lien, and directing the bonds and the interest thereon which have come into the hands of the appellant, as such administrator, to be applied towards payment of the plaintiff’s judgment, and that a receiver be appointed.

The appellant insists that by the death of Patchin ! and the appointment of an administrator to his estate, the bonds in question and the interest upon them which have come into the possession of such administrator, are to be applied to the payment of the debts of the intestate in the order and according to the provisions of the Revised Statute touching the payment of debts of deceased persons, and that the learned referee has mistaken the law of the case in this respect.

There is a judgment in favor of the Chautauqua County Bank, recovered and duly docketed for twenty thousand and eleven dollars and sixty-eight cents against Aaron D. Patchin, prior in date to the plaintiff’s judgment; whether any other, and if so, what other judgment, stands against Patchin, does not ap.pear.

In Sylvester v. Reed (3 Edw. Ch., 296), and in Mathews v. Neilson (Id., 346), it was held in cases involving the very question, that the equitable lien acquired by the judgment creditor’s suit to reach choses in action, &c., of the judgment debtor not liable to execution at law, did not survive the judgment debtor; that the priority which the plaintiff might have thus gained died with the party, and it is stated in the last cited case the chancellor on appeal had affirmed the decision in the former one.

These decisions were made thirty years ago, and have not, so far as known, been overruled or disputed. The learned vice-chancellor remarks in the last cited case, p. 348: “It is true that by filing such a bill the creditor acquires an equitable Hen on the property of the debtor, but his lien in equity ought not to be permitted to interfere with, the legal rights of others, where they happen to come in conflict. If it were a Hen in law, and the property in possession under such lien, then I admit that the personal representative of the deceased debtor would take subject to such Hen, and the creditor having the Hen would be entitled to the benefit of it despite the statute. So, if a receiver has been appointed on a creditor’s biH and has obtained possession of the property or money of the debtor, before his death, this court having possession through its officer, will not part with the possession to the executor or administrator, but apply it to the payment of the debts, with due regard, however, to the statutory rights of other creditors. ■ But in the present case there has beer no appointment of a receiver, and, of course, no pos session of any property within the immediate view and control of this court.”

Although much may be said, and has been said, by the learned referee in Ms very able opinion, against the justice of these decisions, still I am of the opinion that the whole administration of these assets devolves upon the administrator under the statutes, and that he is the proper person to apply them to the payment of the decedent’s debts.

I am of the opinion that the judgment appealed from should be reversed.

Barker and Daniels, JJ., concurred in the result.

From the judgment of the supreme court reversing the judgment of the referee, the plaintiff appealed to the court of appeals.

The court of appeals reversed the judgment of the supreme court, and affirmed the judgment entered upon the report of the referee. The opinion of the court was delivered by

Earl, Ch. J.—First.

Aside from the effect the Revised Statutes may have upon the subject, it will not be questioned that the lien the judgment creditor gets by virtue of the commencement of Ms equitable suit would survive the death of the debtor (Storm v. Waddell, 2 Sandf. Ch., 494).

The property then passes to the personal representatives, charged with this lien. The assets are subject to this lien, and' the debts of the debtor are to, be paid out of them, after this lien, like any other legal lien, has been first satisfied.

It seems to me that the provisions of the Revised Statutes (2 Rev. Stat., 88, § 27) as to the order in which debts of a deceased debtor are to be paid, has nothing whatever to do with this question. This provision does not define what are assets, nor how liens upon the assets are to be discharged, but it directs the order in which the net assets,—that is, the property of the debtor remaining after liens have been discharged,— shall be applied in payment of his debts.

Second. I think the judgment upon which this action is based is a valid one. Mr. Haven, a responsible attorney, appeared for A. D. Patchin, the deceased, and in such a case, I think it ought to be regarded as the settled law of this State; that the judgment may stand, and the party must seek his remedy against the attorney, who, without any authority, has appeared for him. Unless there is some good reason for not doing it, I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in, where the rights and equities of aH parties can be best protected. This rule is based not entirely upon the law of agency, but upon reasons of policy and justice, which are discussed in the case of Denton v. Hoyes (6 Johns., 296), and by Judge Woodruff in Hamilton v. Wright (37 N. Y., 502).

I think the judgment of the general term should be reversed, and that the costs of both parties upon the appeal to the general term and to this court, should be paid out of the funds in the hands of the defendant.

Judgment" of general term reversed, and that of special term affirmed, and costs of both parties on appeal to general term and to this court to be paid out of the fund in controversy in the hands of the defendant. 
      
      Present—Daniels, Lamont, and Barbee, JJ.
     