
    WILLIAM H. BEARD, Plaintiff and Appellant, v. JAMES P. SINNOTT, Defendant and Respondent.
    When the case does not contain any of the evidence, but the findings of facts only, it is to be assumed that there was no evidence from which any other fact could be found ; and when in such a case the conclusions of law have been excepted to, the question to be determined is, whether such conclusions are warranted by the findings of fact (Stoddard v. Whiting, 46 W. T. 27).
    
    A sale of real estate under an execution lawfully issued, even after the expiration of ten years from the recovery and docketing of the judgment, is a good and valid sale as against the defendant in the execution.
    Although the judgment has ceased to be a lien upon the real estate, and although the rights of bona fide purchasers, mortgagees, creditors, etc., may intervene and attach at any time before the sale, yet if they do not, such real estate is still defendant’s property, and may be sold if in his legal possession.
    Section 282, and Subd. 1, of § 289 of the Code; and §§ 1 and 2, Art. 1, Title 4, Chap. 6, Part 3, of the Revised Statutes (2 J3.8. 359), considered as to whether they are in conflict or in harmony with each other.
    
      Before Mouell, Curtis, and Sedgwick, JJ.
    
      Decided June 29, 1872.
    Appeal from the judgment of a referee.
    The action was to recover the possession of a lot of land in the city of New York.
    The referee found the following facts.
    1. That on the third day of October, 1851, one Oliver Johnston, of the city of New York, was seized in fee simple of the premises.
    
      2. That on the third day of October, 1851, the Bowery Bank, of the city of New York, recovered a judgment, in the Superior Court of the city of New York, against Johnston, for the sum of nine hundred and four dollars and seventy-nine cents ($904.79), in an action commenced in said court in or about August, 1851; that such judgment was on the same day duly docketed in the office of the clerk of the city and county of New York ; and thereupon, and on that same day, an execution against the property of the judgment debtor, to satisfy such judgment, was issued to the sheriff of the city and county of New York, which execution was afterwards, —namely, on the 15th day of December, 1851—re-turned wholly unsatisfied.
    3. That on the 10th day of October, 1852, Johnston died intestate, and without issue; and was, at the time of his death, an inhabitant of the city and county of New York; and that on the sixteenth day of November, 1852, the surrogate of that city and county issued letters of administration upon his estate.
    4. That on the 25th day of September, 1861, an assignee of the foregoing judgment so obtained by the said Bowery Bank of the city of New York against Johnston, and which then remained of record and unsat isfied, duly filed a petition to the surrogate of the city and county of New York—the said surrogate being the surrogate who had jurisdiction to issue letters of administration upon the estate of Johnston—for leave to issue execution upon the said judgment so recovered against said Johnston ; and the said surrogate, upon sufficient cause shown, thereupon granted the prayer of said petition, and made an order granting permission to issue execution on said judgment.
    5. That under and pursuant to the order and permission of said surrogate, an execution on said judgment was thereupon—to wit: on the 30th day of September, 1861—issued and delivered to the sheriff of the city and county of New York, commanding the said sheriff to satisfy the said judgment out of the personal property of said judgment debtor; and if sufficient personal property could not be found, then out of the real property belonging to such judgment debtor on the day when the said judgment was docketed in said county—namely, the 3d day of October, 1851—or at any time thereafter.
    6. That under and pursuant to the execution so issued to him on said judgment under the order of said surrogate, the said sheriff, on the 15th day of November, 1861, sold at public auction, in said city, to one Thomas Haskins, after giving the notice prescribed by law, all the right, title, and interest which Johnston had on the 3d day of October, 1851, or at any time thereafter, of, in, and to the lands and premises described in the complaint in this action, and executed to said Haskins ; and on the 25th day of November, 1861, duly filed in the office of the clerk of the city and county of New York, two certificates of such sale—the premises having been sold by him in parcels—and that afterwards,—namely, on the 18th day of February, 1863—the premises not having been redeemed from such sale, the sheriff duly executed, acknowledged, and delivered to Haskins two certain deeds of conveyance, bearing date on said last-mentioned day, whereby the sheriff granted and conveyed to Haskins all the right, title, and interest which Johnston had on the said 3d day of October, 1851, or at any time thereafter, of, in, and to the lands and premises aforesaid, and which are described in the complaint in this action.
    7. That after the delivery to him of the sheriff’s deeds, Haskins entered into possession of the premises ; that he executed a mortgage thereon to one John Johnson, of Brooklyn; that Johnson afterwards commenced an action in the Supreme Court against Haskins for the foreclosure of the mortgage, and the sale of the premises ; that in such action the premises were, on the 22d day of April, 1868, adjudged to be sold under the direction of a referee ; that afterwards—to wit: on the 19th day of May, 1868—the premises were duly sold, under said judgment of the Supreme Court, to said John Johnson, of Brooklyn; and that after such sale—to wit: on the 10th day of June, 1868—the referee duly executed and delivered to Johnson a deed of conveyance of said premises; and that Johnson subsequently entered into possession of the premises.
    8. That afterwards—to wit: on the 19th day of February, 1869—Johnson, and Helen S., his wife, being in possession of the premises, duly executed and delivered a warranty deed of conveyance thereof to the said defendant, James P. Sinnott, for a valuable consideration ; and that afterwards—to wit: on the 27th day of February, 1869—Haskins and his wife also executed and delivered to Sinnott a release and quit-claim deed thereof; and thereupon Sinnott took possession of the premises as the owner thereof.
    9. That the plaintiff is heir at law to the extent of one-half the estate of Oliver Johnston, the deceased judgment debtor, and claims said premises as such heir at law, and not otherwise.
    tlpon the foregoing facts, the referee found as conclusions of law:
    
      1. That the sale of the premises by the sheriff of the city and county of Hew York, under and by virtue of the judgment recovered by the Bowery Bank of the city of blew York, and the execution issued thereon, as aforesaid, was valid and regular in all respects; and that the subsequent conveyances of the premises by the sheriff to Thomas Haskins were also valid and regular in all respects, and that they operated to convey the premises to Haskins in fee simple.
    
      2. That the defendant, Sinnott, by the conveyances made to him by John Johnson and wife, and Thomas Haskins and wife, became the owner of the premises in fee simple.
    3. That the plaintiff in this action was not, at the time of the commencement thereof, and is not now entitled to the possession of the premises, or of any part thereof, or to any interest or right therein.
    
      Mr. John Townsend, for appellant,
    presented the following points : I. The right to sell land under an execution, is one derived from statute ; it is only by showing that the provisions of the statute have been complied with, that the existence of the right can be proved (Townshend v. Wesson, 4 Duer, 356).
    II. To enable the party to sell the real estate of the judgment debtor under an execution, the judgment must be a lien upon the estate at the time of the sale (Willard on Real Estate, 455, ed. 1861; Graff v. Kipp, 1 Edw. Ch. 619 ; Little v. Harvey, 9 Wend. 157; Tuffts v. Tuffts, 18 Wend. 621, 625).
    III. A judgment which never became a lien, and a judgment which has ceased to be a lien, are identical. Ho sale can be had on a judgment which never became a lien (Townshend v. Wesson, 4 Duer, 356). (a). And therefore no sale can be had on a judgment which has ceased to be a lien. The sale is to enforce the lien: the lien having expired, there is nothing to enforce. It is like a mechanic’s lien, which, if suffered to expire, cannot "be enforced (Grant v. Vandercook, 8 Abb. Pr. N. S. 445).
    IV. In the case now "before the court, the judgment ceased to be a lien on the 2d or 3d of October, 1861. By the Code, section 282, the judgment is a lien for “ten years from the time of docketing the same.” This provision differs from the Revised Statutes (2 Rev. Stat. 359), which provided, “From and after ten years from the time of docketing, every such judgment shall cease to bind .... such property .... as against purchasers in good faith,” etc. In the case of a judgment under the Code, it is a lien for ten years only. Under the Revised Statutes, the judgment was a lien so long as it continued unsatisfied, with a provision for the lien ceasing at the end of ten years, against certain parties only. (a). The action by the Bowery Bank having been commenced after the Code took effect, the proceedings therein, and the effect of the judgment as a lien, are governed by the Code (Code, § 8).
    Decision of Judge Robinson, MS.
    V. The death of the defendant intermediate the judgment and the execution, did not extend the lien of the judgment beyond the ten years prescribed by Code, section 282. The Revised Statutes (2 Rev. Stat. 368, § 27) provide, that if a party die after judgment rendered against him, but before execution issued thereon, the remedy on such judgment shall not be suspended by reason of the non-age of any heir of such party ; but no execution shall issue on such judgment until the expiration of one year after the death of the party against whom the same was rendered. The only events which can extend the lien of the judgment are those mentioned in section 282, namely, the judgment creditor being restrained by injunction or other order, or by appeal (Pennsylvania Bank v. Creon, 2 Rawle, 224; Fryhoffer v. Busby, 17 Serg. & R. 121; Lesher v. Gillingham, Id. 123).
    
      VI. The provisions of law not in conflict with chapter 1 of title IX. of the Code (§§ 283-291), relating to executions and their incidents.....apply to executions prescribed by that chapter (Code, § 291).
    That a judgment shall be a lien for twenty years, conflicts with a provision that a judgment shall be a lien for ten years.
    VII. The judgment debtor having died after the execution returned unsatisfied, no proceedings to enforce the judgment could be taken, until the judgment was revived or the heirs summoned, pursuant to section 376 of the Code. Thó law of 1850, ch. 225, provides an additional preliminary to the issuance of an execution against the estate of a deceased judgment debtor, but has not dispensed with the proceedings provided by section 376 of the Code. The execution was irregular and void, as against the heirs (Marine Bank of Chicago v. Van Brunt, Court of Appeals, April, 1872 ; Wood v. Moorhouse, 45 N. Y. 368).
    
      James P. Sinnott, for respondent,
    urged: I. Section 3, of Article 1, Title 5, Chap. 6, of the Revised Statutes, enacted, that the lands and real estate of every person against whom a judgment should be docketed, should “be subject to be sold upon execution to be issued on such judgment” (2 Rev. Stat., Edmonds, Ed. p. 371).
    Section 291, of the Code of Procedure, enacted :
    § 291. “ Until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter ” (5 Edmonds' Stat. at Large, p. 83).
    
      Section 289, of the Code of Procedure, in prescribing the form of an execution, enacted:
    “1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and if sufficient personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at ary TIME THEREAFTER.”
    The court will observe that not only is no distinction, based upon the time of the issue of the execution, made between real and personal property, but the execution must direct the sheriff to satisfy the judgment out of the real property, if sufficient personal property cannot be found.
    Now, where an execution has once been issued within five years, and even if it had not been, the right to issue one continues an absolute legal right for twenty years, if the judgment remains unpaid and unsatisfied of record. It is the record of the judgment which gives the right to execution (Lee v. Watkins, 13 How. 178; S. C. 3 Abb. 243; Kennedy v. Mills, 4 Abb. 132; Betts v. Garr, 26 N. Y., 12 Smith, 383).
    • Here, then, we have the right to issue execution within twenty years, and we have the statute requiring us, whenever we do issue the execution, to make it direct the sheriff to satisfy the judgment out of the real ■ property belonging to the judgment debtor at the time of the docketing of the judgment, “or at any time thereafter ; ’ ’ and yet it is pretended • that we cannot touch this real property after ten years.
    It is true that if the creditor waits for more than ten years, and, in the mean time, other judgments have also become liens, the lien of the first judgment becomes ended, as to those other judgment creditors, and the liens of these other judgments continuing, the first judgment becomes a postponed judgment; it ceases to be a senior, and becomes a junior, judgment.
    II. By “the existing provisions of law,” at the time of the adoption of the Code, the lands of a judgment debtor were liable to be sold on execution, notwithstanding that more than ten years had elapsed since the judgment was docketed; and the sale was good as against the judgment debtor, and as against his heirs, and as against his grantees without value (Scott v. Howard, 3 Barb. 319; Ex parte, Peru Iron Company, 7 Cowen, 540; Mower v. Kip, 2 Edw. C. R. 165; Pettit v. Shepherd, 5 Paige, 493 ; Mohawk Bk. v. Atwater, 2 Paige, 54).
    In all these cases, the court holds that, notwithstanding the lapse of the ten years, the property will pass to the heirs, and gratuitous grantees, charged with the lien of the judgment.
    III. The existence of a technical lien is not, however, we insist, essential to the power of selling on execution.
    The power of selling land on execution is one thing; the lien of the judgment by which that power is made efficacious, is quite another.
    To create either the power or the incumbrance, a judgment must be rendered and docketed; which pimply shows, that they are children of the same parent, to wit, the docketed judgment; but surely this does not show that one may not survive the other, but the contrary.
    The Code, in stating what an execution shall contain, does not say that it shall direct the sheriff to satisfy the judgment out of any real property upon which the judgment is a lien; but it says, to satisfy the judgment out of any real property belonging to the judgment debtor at the time of the docketing, or at any time thereafter (Code, § 289).
    How, if, when the sheriff comes to sell, he finds real property belonging to the judgment debtor, and finds that that judgment debtor has still precisely the same interest- in the property which he had when the judgment was docketed, why may not the sheriff sell ?
    IY. The judgment does continue a lien after the ten years, as against the judgment debtor and his heirs.
    It is conceded, we believe—at least it cannot be denied. —that under the Revised Statutes the judgment continued a lien after the lapse of the ten years, as against the judgment debtor, his heirs and gratuitous grantees (3 Barb. 319; 7 Cowen, 540 ; 2 Paige, 54; 2 Edw. ch. 165 ; 5 Paige, 493).
    But the learned counsel for the plaintiff contends that the Code repeals the provisions of the Revised Statutes in that behalf. For this he cites no authority whatever, and his assertion is contrary to every expression of opinion heretofore published on the subject, including his own Annotations to the Code. There is no reported case upon the point.
    The learned counsel for the plaintiff has, in the various editions of the Code which he has so ably edited, cited, under this very section, 282 of the Code, the case of Scott v. Howard, as an authority to show, that the lien of a judgment continued, as against the judgment debtor, after the lapse of ten years.
    
    Judge Willard, in his able work on Real Estate and Conveyancing, after reciting the provisions of the Revised Statutes on this subject, says, “ the provisions of the Code are substantially the same” (page 153).
    Judge Comstock, in his 11th edition of Kent’s Commentaries, published in 1866, seems to have discovered no substantial change, and treats the provisions of the Revised Statutes as still in force (4 Kent, 435).
    In Tillinghurst and Shearman’s Practice, it is said, vol. 2, p. 719 : “ Whether the provisions of the Revised Statutes on the subject of judgment liens are in force or not, the interpretation put upon them by the courts is the same that would be put upon the Code. And on the same page they cite several cases to show that, as against the judgment debtor and his grantee, without a valuable consideration, the lien of the judgment ‘ continues in force for twenty years at least.’ ”
    In Gerard’s “Titles to Real Estate,” the sections of the Revised Statutes referred to are set forth as existing laws.
    In Willard’s Equity, a whole paragraph is devoted to the lien of judgments, and the provisions of the Revised Statutes in question are treated as continuing in full force.
    Mr. Justice Moeell, in his work on Practice, also lays down the rule, that the judgment continues a lien, except as against bona-fide purchasers, etc. (2 MonelV s TPr. 101).
    Such a universal understanding, by the profession, of a matter involving the title to real estate, will not, and should not, be lightly dissented from by this court, to the disturbance and confusion of titles, bond fide acquired. The argument db inconvenienti ought, in such a case, to be given the greatest force.
    The plaintiff’s counsel cited below the manuscript case of Coe v. Williams, decided by Hon. H. W. RobnsrsoR, as a referee. But that case seems to us not to have the slightest application. The case merely decides that if a junior judgment creditor issues an execution and sells real estate of the judgment debtor, the title of the purchaser will be good, subject to the prior judgment, and that if the ten years are permitted to elapse without a sale under the prior judgment, the title of the purchaser at the sale under the junior judgment will thereupon be released from the prior judgment, and a subsequent sale under the prior judgment will thereupon be void, as to the title of suph purchaser at the sale previously made.
    
    
      Y. The provisions of the Revised Statutes and of the Code as the latter stood in 1861, were as follows:
    
      
      Oode.
    
    § 282. On filing a judgment roll upon a judgment, directing in whole or in part the payment of money, it may be docketed with the clerk of the county where it was rendered, and in any other county, upon the filing with the clerk thereof a transcript of the original “docket,” and shall be a lien on the real property in . the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered.
    But, whenever an appeal, etc. (Voorhies, Code, 8th ed., p. 518).
    
      Revised Statutes.
    
    § 3. All judgments hereafter rendered in any court of record shall bind and be a charge upon the lands, tenements, real estate, and chattels real, of every person against whom any such judgment shall be rendered, which such person may have at the time of docketing such judgment, or which'such person shall acquire at any time thereafter; and such real estate and chattels real shall be subject to be sold upon execution to be issued on such judgment.
    § 4. From and after ten years from the time of docketing every such judgment, it shall cease to bind or be a charge upon any such property as against purchasers in good faith, and as against encumbrances subsequent to such judgment, by mortgage judgment, decree, or otherwise (2 Edmonds’ Rev. Stat. p. 371).
    The question here arises, what was the true intention of the legislature, in reference to the lien of judgments, in enacting the Code; and was it such that, by a necessary and inevitable implication, the foregoing provisions of the Revised Statutes were repealed ?
    
      To ascertain this, we must look, not only to this section, "but to the entire act called the Code; and not only to that, but to the whole body of legislation on the same subject matter.
    In Bwabris on Statutes, pp. 145, 146, recently published and edited, with notes, by Mr. Justice Platt Potter, the following rules of interpretation are laid down, fortified by the highest authorities:
    “Where there is a discrepancy or disagreement between two statutes, such interpretation should be given, that both may, if possible, stand together ” (McCartee v. Orphan Asylum Society, 9 Cow. 437).
    16 In the construction of a statute, every part of it must be viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of a statute to be without meaning” (Ogden v. Smith, 2 Paige 384; People v. Draper, 15 N. Y. 532).
    “All statutes in pari materia are to be read and construed together, as if they formed part of the same statute and were enacted at the same time ” (1 Kents Com. 463 ; Smith's Com. § 639 ; 9 Barb. 161; Rogers v. Bradshaw, 20 John. 735; McCartee v. Orphan Asylum, 9 Cow. 437; Rexford v. Knight, 15 Barb. 627).
    Applying these rules to the subject under consideration, we find that section 282 of the Code contains no limitation for the benefit of bond-fde purchasers and encumbrancers, except it be contained in the words “for ten years.” If you omit these words, then § 280 makes the lien perpetual, even as against bond-fde pur chasers ; but by holding that these words of limitation were intended to operate to protect bona-fide purchasers, and were, in effect, but a reiteration, in another form, of the § 4 of the Revised Statutes, then you give a legitimate effect to both, and you make the whole act reconcilable with itself and with the Revised Statutes.
    
      In the next place, the court will observe that section 282 of the Code leaves unchanged and untouched the ■clause of section 8 of the Revised Statutes reading ‘1 and such real estate and chattels real shall be subject to be sold upon execution to be issued on such judgment /’ ’ while section 289 of the Code requires, that the execution shall direct the real estate to be sold. Why, if any lien be necessary to sustain the power of selling under the execution, the court must hold it to be created here, by necessary and inevitable intendment.
    Can any one read the Code and believe that it was in tended by § 282 that a judgment debtor might make over his real estate to his wife, or bestow it gratuitously upon his nephew, and leave a judgment duly docketed against him unpaid, in the face of § 289, which gives the right to sell this real estate on execution at any time within twenty years, and in the face of § 292, in regard to proceedings supplementary to execution ? If at any time within the twenty years you can discover property —real as well as personal—in the hands of a party who obtained it from the judgment debtor without value, can you not follow it into his hands % Therefore, it must be that the judgment continues to bind and be a charge upon the land as against that judgment debtor and his gratuitous grantee.
    How sections 289 and 292 not only help us to understand the real meaning of section 282, but, being later sections in the same act, they control it, to the extent necessary to give full effect to the power of execution.
   By the Court.—Monell, J.

The case furnished us on this appeal contains none of the evidence taken at the trial. It is made up merely of the findings and conclusions of the referee. The objection, therefore, that it does not appear that the surrogate had authority to allow the issuing of the execution, cannot now be examined.

In. the latest case (Stoddard Whiting, 48 JY. Y. B. 627), the rule is stated to be, that, “ when the case does not contain any of the evidence, but the finding of facts only, it is to be assumed that there was no evidence from which any other fact could be found ; and when the conclusions of law in such a case have been excepted to, the question to be determined, is, whether such conclusions are warranted by the facts found.”

The referee in this case having found that the surrogate, upon sufficient cause shown, made an order granting permission to issue execution upon the judgment; and the surrogate by statute (Laws, 1850, ch. 295) having power to make the order, it will be assumed that there was the requisite evidence before the referee to authorize its being made.

The remaining and important question is, whether the sale under the execution gave a valid title to the purchaser ; and the solution of that question depends upon whether the provisions of the Revised Statutes (2 JR. 8. 359, § 4) respecting the lien of judgments is now in force, or has been changed by the provisions of the Code, so as to destroy the right to sell the real property of the debtor upon execution issued more than ten years after judgment.

The provision of the Revised Statutes, limits the lien to ten years only as against subsequent purchasers and encumbrances; leaving the lien to continue after that period as against the debtor (Mohawk Bk. v. Atwater, 2 Paige, 54; Ex parte, The Peru Iron Co., 7 Cow. 540; Scott v. Howard, 3 Barb. 319). But the section of the Code fixing the lien of judgments, does not contain the exception which is found in the former statute ; but as well against the debtor, and consequently his heirs or devisees, as against subsequent purchasers or encumbrances, the lien by the terms of the statute, it would seem, absolutely ceases after ten years.

The authority given to the surrogate by the Act of 1850 (supra), to allow the issuing of an execution upon a judgment, is confined to judgments which are a lien upon the real estate of the deceased debtor; and the execution is to be issued and executed, in the same manner and with the same effect, as if the debtor was still living, except that a year must elapse after the death.

If, therefore, the judgment could be enforced only in virtue of a subsisting lien, the order of the surrogate was imperative if such lien had ceased to exist. Under the Act of 1813, which was like the provision of the Revised Statutes (1 R. L. 500), it was held (Roe v. Smart, 5 Cow. 294), that the issuing of an execution would not prolong the lien. From which it would seem to follow, that at least the sale must be made within the ten years, if nothing more. At any rate the lien ceases as to subsequent purchasers, etc., after that time (Crozier v. Acker, 7 Paige, 137).

But although the lien ceases, it does not follow that an execution may not issue, and a levy and sale made, of any property of the debtor within the bailiwick of the sheriff.

The omission in the Code ‘1 as against subsequent purchasers,” etc., does not alter the legal effect of the provision. Under either statute the lien would cease after ten years as to such purchasers, etc.; and possibly under the Code, the lien, as a mere lien, would also cease as to the debtor. But the writ of execution is a judicial writ, issued, presumptively, by the court to execute or enforce its judgment. Its form and time of issuing, etc., have been regulated by statute, but the power to issue is inherent in the court (Boote’s Suit at Law, 193), and its mandate is, as respects real property, to make the amount out of the real property of the debtor belonging to him on the day the judgment was docketed, or at any time thereafter.

Being satisfied that the Code has not deprived the creditor of the right to sell his debtor’s real estate at any time while he remains the owner, and that the sale in this case vested the title in the purchaser, I have not found it necessary to see whether the provision of the Revised Statutes is or is not repealed by the Code.

The Act of 1850 (supra) has been held not to be in conflict with the provisions of the Code, giving an action, in lieu of the former scire facias, to revive against heirs and terre tenants (Marine Bk. of Chicago v. Van Brunt, Court of Appeals, April, 1872), but as merely furnishing a cumulative remedy. The order of the surrogate ¿ad the effect of reviving the judgment as against the heirs of the deceased debtor, and as to them the lands became bound from that time.

I think the judgment of the referee was correct, and should be affirmed.  