
    The Atlas Refining Company, Plaintiff, v. Lester B. Smith, Defendant. American Tube and Iron Company, Plaintiff, v. Lester B. Smith, Defendant. George Urban, Jr., Plaintiff, v. Lester B. Smith, Defendant. Standard Oil Company of New York and Sadie Craik, Appellants; Maud I. Smith, Respondent.
    
      An execution may issue against real property, in the possession of the heirs and devisees of a deceased judgment debtor, on which the judgment has not been a lien — such execution can be issued, after one year, only by leave of the'court..
    
    Section 1353 of the Code of Civil Procedure confers upon a judgment creditor the right, after the expiration of ten years from the filing of the judgment Toll, to enforce the judgment, against the real property and chattels real of the judgment debtor, and, in the event of the death of the judgment debtor, to issue an execution upon the judgment and enforce the same against the real property of the judgment debtor in the hands of his heirs and devisees, although the judgment never became a lien upon such property because of the failure to file a transcript thereof in the county in which the property was situated.
    Section 1380 of the Code of Oivil Procedure, which provides that an execution upon a final judgment for a sum of money shall not be issued, after the expiration of one year from the death of the j udgment debtor, unless leave is first obtained from the court from which the execution is to be issued and from the Surrogate’s Court which granted letters upon the estate of the deceased judgment debtor, is made applicable to an execution issued under the provisions of section 1252 of the Code of Civil Procedure by section 1379 of that Code, which provides: “An execution to collect a sum of money cannot be issued against the property of a judgment debtor, who has died since the entry of the judgment, except as prescribed in the next two sections.”
    The words “such an execution,” contained in the second sentence of section. 1380 of the Code of Civil Procedure, include executions issued upon judgments which are not, as well as those which are, 'liens upon the real property of a judgment debtor.
    Appeal "by the Standard Oil Company of New York, the petitioner in the first-above entitled action, and by Sadie Craik, the petitioner in the third-above entitled action, from an order of the Supreme Court, made at the Erie Special Term and entered in • the office of the clerk of the county of Erie on the 24th day of October, 1899, denying their motions for leave to issue executions.
    The Atlas Refining Company recovered a judgment against Lester B. Smith in the Supreme Court, Erie county, on the 29th day of April, 1884, for $1,573.70. The judgment roll was filed and the judgment duly docketed on that day. No execution has been issued on this judgment, but.it was assigned to the petitioner, the Standard Oil Company, in June, 1892.
    George B. Urban, Jr.,, recovered a judgment against said Smith in the Supreme Court, Erie county, on the 19th day. of September, 1882, for $373.77; the judgment roll-was filed and judgment duly docketed in said clerk’s office on that day. An execution was duly issued on this judgment to the sheriff of Erie county on the 22d day of April, 1882, which execution was returned wholly unsatisfied, and the judgment was duly assigned to Sadie Craik, the petitioner, on the 6th day of May, 1893. A transcript of each of said judgments was duly filed and docketed in the clerk’s office of Suffolk county on the 1st day of July, 1899. The judgment debtor died intestate in the city of New York on the 23d' day of November, 1893, being then the owner, of certain real property, described in the petition, situate in Suffolk county, and leaving him surviving as his only herns at law a son and (laughter, Earl B. and Maude I. Smith. On the 2d day of December, 1893, Elmer S. Smith, the decedent’s brother, was duly appointed his administrator by the surrogate of New York county, and he is still acting as such. The administrator filed an account on September 13, 1898, showing that no assets remained in his hands applicable to the payment of these judgments. The real property described in the petition is in possession of said heirs, who are still the owners thereof subject to whatever claims the petitioners may have,, and the petitions show that the heirs are permitting the property to go to waste. The petitions show that petitioners were also about to apply to the surrogate of the county of New York for leave to issue executions on said judgments. The application to the Special Term was made on an order to show cause, which was duly served on said heirs at law. Earl B. Smith made default, hut Maude I. appeared and opposed the application on the sole ground that, more than ten years having elapsed since the recovery of the judgment, it has ceased to be a lien, and that no transcript having been filed in Suffolk county within ten years it never became a lien on the premises, and that there is no authority for enforcing it against the same. The motion was denied upon this ground.
    
      Lyman A. Spalding, for the appellants.
    
      Ingram, Mitchell & Williams, for the respondent.
   Laughlin, J.:

It appearing that the judgments have not been paid, and no cause being shown why the executions should not issue, other than a denial of power on the part of the court to grant the motion, this appeal presents a question of law only.

By the Revised Statutes (2 R. S. 359, §§ 3,4) a judgment remained a lien upon real property as against the defendant, his heirs and devisees, for the period of twenty years, after which time payment was presumed; but a judgment ceased to be a lien after ten years from the docketing thereof as against subsequent incumbrancers by mortgage, judgment, decree or otherwise and bona fide purchaser's, even though the incumbrance was taken or acquired or purchase made with full knowledge of the existence of the prior judgment, but without fraudulent intent to prevent the payment thereof. (Scott v. Howard, 3 Barb. 319 , Roe v. Swart, 5 Cow. 294; Ex parte Peru, Iron Co., 7 id. 540, 554; Tufts, Admr. v. Tufts, 18 Wend. 621;. Little v. Harvey, 9 id. 157; Pettit v. Shepherd,. 5 Paiges 493.) .

Prior to the enactment of the Code, if the judgment debtor died after judgment and before execution issued, an execution could not be issued until the expiration of one year after his death. (2 R. S. 368, § 27.) • In such case an execution .could then only be had against the personal representatives, heirs or terre tenants, after the return of a' writ of scire facias. (Wood v. Morehouse, 45 N. Y. 368, 374, 375; Marine Bank of Chicago v. Van Brunt, 61 Barb. 361; 49 N. Y. 160, 163.)

Section 376 of the Code of Procedure provided that' where the judgment debtor died after the recovery of the judgment, his heirs, devisees or legatees or the tenants of real property owned by him and affected by the judgment ” might, after the expiration of three years from the time of' granting letters testamentary or of administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in .their hands, respectively, and that the personal representatives of a deceased judgment debtor might be so- summoned at any time-within one •year after their appointment. Chapter 295 of the Laws of 1850 provided as follows:' “Notwithstanding the death of a party after judgment, execution thereon against any property, lands,' tenements, real estate, or chattels real, upon which such judgment shall be a lien, either at law or in equity, may be issued and executed .in the same manner and with the same ■ effect as if he were still living, except that such execution cannot be issued within, a year after the death of the defendant, nor in any case, unless upon permission granted by the surrogate of the county who has jurisdiction to grant administration or letters testamentary on -the estate of the deceased judgment- debtor, which surrogate may, on sufficient cause shown, make an order granting permission to issue such execution as aforesaid.”

Section- 376 of the Code of Procedure, requiring leave of the court in which the judgment was docketed, on notice to the heirs, devisees or legatees, or personal representatives, to issue execution where the judgment debtor died after the recovery of judgment, and said act of 1850, requiring like consent of the Surrogate’s Court, remained the law governing the issue of executions in such cases as to all judgments rendered prior to the enactment of the Code of Civil Procedure, and it was immaterial to which court an application was first made. (Marine Bank of Chicago v. Van Brunt, supra; Wallace v. Swinton, 64 N. Y. 188.)

Section 282 of the Code of Procedure provided for the docketing of judgments to conform to the new practice, but left the extent of the lien and the manner of enforcing the same to be determined by the Revised Statutes. (Throop’s note to § 1252, Code Civ. Proc.; Matter of Hallock, 61 N. Y. St. Repr. 230.) But the Legislature, by an act passed July 10, 1851, amended this section by providing that a judgment, upon being duly docketed, 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.”

Such was the. state of the statutory law on these questions when the first part of the.Code of Civil Procedure was enacted. Section 1251 of the Code of Civil Procedure as originally enacted provided as follows:

“ Except as otherwise specially prescribed by law, a judgment, hereafter rendered, which is docketed in á county clerk’s office, as prescribed in this article, 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 has, at the time of so docketing it,' or which he acquires at any time after-wards, and within the ten years.”

Section 1252, as originally enacted, provided as follows :

When ten. years after filing the judgment-roll have expired, real property or a chattel real; which the judgment debtor, or real property which a person, deriving his right or title thereto, as the heir of devisee or the judgment debtor, then has, in any county, may be levied upon, by virtue of an execution against property, issued to the sheriff of that county, upon a judgment hereafter rendered, by filing, with the clerk of that county, a notice, subscribed by the sheriff, describing the judgment, the execution and the property levied upon ; and, if the interest levied upon is that of an heir or devisee, specifying that fact, and the name of the heir or devisee. The notice must be recorded and indexed by the clerk, as a notice of the pendency of an action. For that purpose the judgment debtor, or his heir or devisee, named in the notice, is regarded as a party to an- action. The judgment binds and becomes a charge upon, the right and title thus levied upon, of the judgment debtor, or of his heir or devisee, as the case may he, only from the time' of recording and indexing the notice, and until the execution is set aside or returned.” •

Neither of these sections has been since amended.

Throop, in his note to section 1252, says that a doubt existed as to whether the provision of the Revised Statutes continuing the lien of a judgment for twenty years, as against the defendant, his. heirs and devisees, was repealed by implication by said amendment of 1851 to section 282 of the Code of Procedure,, and if so, as to-whether the lien of a judgment- could be extended by redocketing it. He states that for these reasons it was deemed necessary to replace the former provisions by these two sections, the first limiting-the lien in all cases to ten years after docketing the judgment, in accordance with the apparent meaning of said amendment to the Code; and the second supplying the omissus by providing a' mode which enables a judgment creditor to proceed against real property after .the lapse of the ten years. In his note in the Appendix to sections-1251 and 1252 of the Code, he says that section 1252 was designed to enable a creditor,, after the lapse of the ten years, to bind and reach the real property of the judgment debtor, or of an heir or devisee, by issuing an execution, and filing a notice similar to a notice of the pendency of an action.”

At common law, a judgment was not a lien ujjon real property ; consequently, a judgment creditor only acquires such lien as is given by the statute. The execution, authorized by section 1252 during the life of the judgment and after its lien'period has expired, is a new special mode of levying an execution upon land, manifestly designed to revive and continue the right conferred by the Revised Statutes, but in a different manner. The lien created thereby commences from the time the notice therein provided for is indexed and recorded, and the execution, must require a sale of the right and title of the judgment debtor, his heirs or devisees, as the case may be, existing.at that time and not at the time of the original docketing of the judgment. (Garczynski v. Russell, 75 Hun, 497; Evans v. Hill, 18 id. 464; I. & T. Nat. Bank v. Quackenbush, 71 N. Y. St. Repr. 280.) It will be observed that the Legislature, by the language employed in this section, has clearly shown its intention to confer upon the judgment creditor the right after the expiration of the ten years to enforce the judgment against the real property and chattels real of a judgment debtor, and in case of his death against such property, in the hands of his heirs and devisees in any county, to the sheriff of which the execution is issued, and it is not limited, to property on which the judgment has been a .lien.

Section 1379, as originally enacted, provided as follows:

“An execution to collect a sum of money cannot be issued against the property of a judgment debtor, who has died since the entry of the judgment except as prescribed in the next two sections.”

The language of this section being sufficiently definite and comprehensive tó embrace executions upon which judgments may be enforced pursuant to section 1252, it follows that it must have been intended to provide in sections 1380 and 1381 for the issue of the executions referred to in section 1252.

Section 1380, as originally enacted, provided as follows:

“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 judgmént' 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, and a decree to the same effect is procured from a surrogate’s court of this state, which has duly granted letters testamentary or letters of administration uj)on the estate of the deceased judgment debtor.”

The reviser states that this section was prepared from said chapter 295 of the Laws of 1850, but it is evident that it is also a re-enactment of part of section 376 of the Code of Procedure. This section has been since amended many times by adding provisions thereto, otherwise limiting the time of granting permission r to Issue executions and continuing liens existing at the time of the death of the judgment debtor, and providing for cases where real estate has been conveyed to the judgment debtor in fraud of his creditors; but such amendments are not material to this case for the reason that the greatest limitation upon the time of issuing an execution, prescribed by any of such amendments, expired before this application was made. It is contended by the respondent that this section only authorizes the issue of an execution in cases where the judgment is a lien. The effect of such a construction would be to nullify all the provisions of sections 1252. ■ Section 1380 must be interpreted, not literally but liberally, with a view to making it harmonize with section 1252. It is manifest that the Legislature intended to authorize the issue of an execution on a judgment after the lien thereof had expired, notwithstanding the death of the judgment- debtor; but in order that such an execution might not be issued prematurely or for an excessive amount, or where the judgment had been paid,, or any other legal objection existed, it was provided that the consent-of the court of law having charge of the-judgment should be obtained ; and in order that the execution might not be unnecessarily issued, where the personal assets of the decedent might be sufficient to pay the judgment, or wdiere the interests of the decedent’s estate or of other creditors might require the suspension of the right-to issue the execution for a period, or that the premises be sold otherwise, the consent pi the Surrogate’s Court was also required. (Marine Bank of Chicago v. Van Brunt, supra; Wallace v. Swinton, 64 N. Y. 188.)

To-carry into effect the clear intent of the Legislature, which the court has implied authority to do (Beard v. Sinnott, 35 N. Y. Super. Ct. 51), section 1380 must yield to the construction that the requirement, as a prerequisite to granting the order, that the judgment shall be an existing lien, only applies when ten years have not elapsed since it was docketed, that being the only case where it could, be a lien. A careful analysis of these .statutory provisions shows that this construction will not do violence to the language employed in section 1380 when properly understood. Section 1379 merely forbids the issue of the execution except z& prescribed in sections 1380 and 1381. Section 1380 prescribes that the consent of the court out of which the execution is to issue and the consent of^ the Surrogate’s Court also must be obtained; and provides that such leave shall not be granted until after thé lapse of a specified ■ period of time. The method of enforcing a judgment by execution after ten years either against the real property of the judgment debtor, if living, or such property in the hands of his heirs or devisees, if he be dead, had been carefully prescribed in section 1252. All that was needed in such case was leave to issue the execution. But it was otherwise with a judgment which was still a lien. In that case it was necessary not only to obtain leave to issue the execution, but also to prescribe how the judgment should be then enforced. This was done in the 1st sentence of section 1380, which provides that “A final judgment for a sum of money, or directing the payment of a sum of money,” which embraces all such judgments regardless of the lien thereof, “ 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.” It is the second sentence of this section which provides for obtaining leave of the two courts to issue the execution. Its language, “ But such an execution shall not be issued unless,” etc., relates to an execution on a final judgment for a sum of money, or directing the payment of a rum of money,” referred to in the first sentence and in section 1379, and embraces executions issued on judgments which are not, as well as those which' are alien. Inasmuch as section 1379 expressly relates forward to section 1380 for authority to issue executions in both cases, it. would be proper to hold, in order to solve any doubt as to their meaning, that the words “ such an execution,” contained in the second sentence of the latter section,- relate back to section 1379 and include both classes of executions.

In Lefevre v. Phillips (81 Hun, 232) it was only necessary to decide whether a judgment creditor’s action could be maintained without the- previous issue and return unsatisfied of an execution. Ten years had not elapsed since the recovery of the judgment in that case, and consequently the observations of the learned justice who prepared the opinion, to the effect that an execution cannot be issued under section 1380 of the Code of Civil Procedure where the judgment has never been a lien, should be restricted to the facts then under consideration, and were obiter dicta, at least if applied to the construction of that section in connection with section 1252.

The case of Wilgus v. Bloodgood (33 How. Pr. 289), holding that an execution might issue after ten yeárs, and Matter of Harmon (79 Hun, 226), and Baumler v. Ackerman (63 id. 40), and Matter of Hallock (61 N. Y. St. Repr. 230), holding the contrary, are not in point, as the judgments there under consideration were docketed prior to the enactment of the Code of Civil Procedure.

We are of opinion that the petitioner has shown a legal right to the issue of the execution so far as the court in which the judgment is docketed is concerned. It follows that the order appealed from should be reversed, with ten dollars costs and disbursements to the appellants, and the motions for leave to issue executions granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, the form of the orders to be settled by and before Mr. Justice Laughlin upon five days’ notice.  