
    Byron Chatfield, as Supervisor of the Town of Elbridge, Plaintiff, v. Price Campbell et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    June, 1901.)
    Town — The Hen created hy filing a collector’s bond-may be foreclosed in equity — Principal and surety — When administrators may defend as to land — L. 1890, ch. 569, §§ 52, 53, 66.
    The statutory lien imposed by the Town Haw upon the real estate of a town collector, and that of his sureties, by the due filing of his undertaking of office may, upon his default in failing to pay over tax moneys which he has collected, be foreclosed in equity by the town supervisor, as the remedy at law is not adequate,
    The inadequacy of the remedy at) law considered.
    ' Where the collector deposited the tax moneys, now in default, with an insolvent banking firm of which one of his sureties, since deceased, iwas a partner, and these moneys passed into the firm assets and from thence into the hands of the general- assignee of the firm and there remained, the court considered that the lands of the banker should be sold first in the action as he, or his estate, had become in equity the principal debtor to the town; and it further held that the town supervisor was entitled to payment before the other general creditors of the deceased surety, even if the latter’s estate were insolvent.
    Where the complaint in the action alleges that the administrators of the deceased surety have or claim to have some interest in the premises which accrued subsequently to the lien of the undertaking, the administrators are entitled to defend upon the ground that the plaintiff has on the facts an adequate remedy at law. If the surety’s personal estate were insolvent and the administrators had taken proceedings to sell his real estate to pay his debts, they would be necessary parties to the action.
    Action by a town supervisor to foreclose under a town collector’s bond.
    Hiscock, Doheny, Williams & Cowie, for plaintiff.
    Baldwin & Magee, for defendants Campbell and Post.
    Homer & Waldo Weston, for defendants Rodger and Lewis, as Administrators, etc.
   Andrews, W. S., J.

Every person elected or appointed collector of a town in this State is required to execute an undertaking, with two or more sureties, to the effect that he will well and faithfully execute the duties of his office, and deliver it to the supervisor. The supervisor shall'file the undertaking in the office of the county clerk, who shalPmake an entry thereof in a book to be provided for that purpose, in the same manner as judgments are entered of record; “ and every such undertaking shall be a lien on all the real estate held jointly or severally by the collector, or his sureties, within the county at the time of the filing thereof, and shall continue to be such lien, until its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied.” The parties executing this undertaking are jointly and severally liable for the damages caused to any person or party by reason of a breach of its terms. Town Law (L. 1890, ch. 569), §§ 52, 53, 66.

If a collector shall neglect or refuse to pay over the moneys collected by him to any" of the persons to whom he is required to pay the same by his warrant, or to account for the same as unpaid, the county court, on proof of such fact by affidavit, shall make an order directed to the sheriff of the county commanding him to levy such sum as shall remain unpaid by the collector out of his property. The sheriff shall cause such warrant to be executed, and if he fails to obtain the entire amount due, he shall so state in his return, and the county treasurer shall give notice to the supervisor of this fact. The supervisor shall forthwith cause the undertaking of the collector to be prosecuted and shall be entitled to recover thereon the sum due from the collector, with the costs of the action. Tax Law (L. 1896, ch. 908), §§ 260, 262.

It appears that in the fall of 1897, Price Campbell was chosen collector of the town of Elbridge. One William C. Rodger, since deceased, and Robert E. Green conducted a banking business in that town under the firm name of Rodger & Co. On or about December 15, 1897, the collector’s official bond was executed by Campbell, Eodger and the defendants, Laird and Post. At this time the bank was insolvent.

Between December 20, 1897, and January 2, 1898, Campbell, as collector, deposited in Rodger & Co.’s bank $800 of tax moneys. On January second Rodger died, and the defendants Lewis and C. Julia Rodger were subsequently appointed. administrators of his estate. The banking business was continued by Green as surviving partner until January 7, 1898, when he made a general assignment for the benefit of his creditors. Between January second and January fourth, Campbell deposited $575 of tax money in addition to his prior deposits. Ho part of these deposits has been repaid, and they are still due from Campbell to the town. Subsequently the proper steps were taken and the sheriff was directed to levy out of the property, personal and real, of Price Campbell, the sum of $1,375. The sheriff made a return stating that he could find no property on which to make such levy. The county treasurer thereupon notified the supervisor and this action was begun.

.The complaint alleges substantially all the facts that have been stated; describes certain pieces of property situated within the county which belonged severally, at the time the bond was filed, to Rodger, Laird and Post; alleges that the administrators and various other defendants, who are the heirs-at-law of William C. Bodger, have or claim to have “ some interest in or lien upon the premises above described, or some part thereof, which interest, or lien, if any, accrued subsequently to the lien of said bond,” and demands judgment of foreclosure and sale of the premises in the usual form to satisfy the amount due on the bond. It further asks that the lands of William C. Rodger be first sold on the ground that, under the circumstances, he, in equity, is primarily liable to make good the amount due, and that the defendants, Campbell, Post and Laird, be adjudged to pay any deficiency.

The defendants, Campbell and Post, answer, also claiming that the lands of Bodger should be first sold.

The defendants, C. Julia Bodger and Alfred B. Lewis, as administrators, answer and allege that the plaintiff ought not to maintain this action in equity for the reason that the facts pleaded disclose an adequate remedy at law; they then deny on information and belief each and every allegation in the complaint, except some formal matters, and submit their rights to the court.

The other defendants have not appeared.

At the close of the plaintiff’s evidence the same defendants again raised the question as to whether or not the plaintiff had an adequate remedy at law, and moved to dismiss the complaint upon this ground. This motion was formally denied and they then, without offering any evidence, rested.

It is suggested by the plaintiff, and by the defendants Post and Campbell that the administrators had no standing in court upon this question. They have no title as administrators to, or interest in the real property sought to be foreclosed, and no personal claim is made against them for deficiency or otherwise. The title of Mr. Bodger’s real estate vested, upon his death, in his heirs. They do not defend.

One- difficulty of this proposition is that the complaint alleges the administrators “have or claim to have some interest in the real estate.” This may easily be true. If, for instance, Mr. Bodger’s personal estate were insolvent and they had begun a. proceeding in Surrogate’s Court to sell his real estate for the payment of debts, I assume that they would be necessary parties to this action. Wiltsie Mort. Forec., § 145.

The more serious preliminary question is whether, under the circumstances disclosed, an action in equity can he maintained for the foreclosure of this lien.

It must be conceded at the outset that the lien created by the Town Law is a purely statutory one and that there is no remedy provided in the statute itself for its enforcement. It must also be conceded that if the plaintiff had" a complete and adequate remedy at law he is bound to resort to that remedy.

Starting with these premises the defendants assert that a court of equity has no jurisdiction. The statute defines the relief to which the plaintiff is entitled and it is an entirely adequate one. He may sue those joining in the bond as for a debt and then their property can be sold on execution.

In support of these propositions, and as a case in point, the defendants cite Upham v. Paddock, 13 Hun, 571. The only question decided in this case was that the plaintiff was not entitled, by virtue of the lien created by the filing of a collector’s bond, to the rents and profits of the land on which the bond was a lien which had been actually collected by the owner thereof. In his discussion, however, the learned justice writing the opinion'spoke of the nature of such a lien as the present. It was not a lien by mortgage, he said, but it was created by statute and was more nearly analogous to a lien by judgment. The statute provides, he says further, no special mode of enforcing the lien. “ The only mode, therefore, is by a suit on the bond to recover the amount due from the collector, and judment being obtained, the real estate which is subject to "the lien may be sold by the sheriff upon execution.”

It is with great hesitation that I fail to follow this intimation, but it seems to be opposed to the great weight of authority. In fact, it seems to be the rule that except in the case of those common-law liens, which simply give the right to the possession of certain property until some debt- or demand due to the person retaining it is satisfied (and many, if not all of "these, now seem to be provided for by section 1737 of the Code of Civil Procedure); except in the case of judgment liens which can be enforced directly by a sale of the property, and except in cases of those other statutory liens where the remedy to be pursued is pointed out by statute itself and is exclusive, a party who has a lien or charge on property may always come into a court of equity and enforce Ms rights, either by a judicial sale of the property itself and a distribution of its proceeds, or by means of sequestration of the property and an appropriation of its rents and income until the lien is satisfied. 3 Pom. Eq. Juris., § 1233; Howe Machine Co. v. Miner, 28 Kan. 441; Fletcher v. Morey, 2 Story, 555; Gilchrist v. Helena H. S. & S. R. Co., 58 Fed. Rep. 708; Hovey v. Elliott, 118 N. Y. 124.

In the article on liens in the Encyclopedia of Pleading & Practice it is stated that As a general rule liens are enf orcible in equity unless another mode of enforcement is provided by law, except in the case of liens accompanied by possession which as a rule cannot be actively enforced in the absence of a statutory remedy. Statutory liens are enforcible in equity when the statute provides no method of enforcement.”

• So in Jones on Liens at section 94, it is said that the foreclosure of a lien is either a statutory or an equitable proceeding. At law there is no remedy beyond retaining possession.

In Wilder v. Butterfield, 50 How. Pr. 385, an action similar to the present seems to have been sustained. There a judgment was allowed declaring a lien upon all the real estate in the county of Jefferson belonging to the obligors; providing that all must be sold under such judgment if needs be to meet any deficiency, and ordering a reference to ascertain specifically what real estate was held by the several obligors.

So in Crisfield v. Murdock, 121 N. Y. 315, an action of the same character as that at bar was brought. An objection was made upon the trial that the plaintiff had an adequate remedy at law, but this question was neither discussed .nor decided either by the General Term or by the Court of Appeals.

The proposition which seems to be maintained, at least impliedly, in the cases which have been cited is also the one that in reason should prevail. The statute creates a lien upon all the real property owned by the sureties at the time the bond is filed. What adequate remedy at law is there for the protection and enforcement of this lien? The party for whose benefit it is created clearly cannot take possession. If the sureties are sued on their joint and several obligation and a money judgment obtained against them this judgment becomes a lien upon the property owned by them at .the time it is docketed. If they had parted subsequently to the filing of the bond with any of their real estate; if other judgments had been obtained against them, or other liens created, such transfers, or judgments or liens would take precedence of the judgment lien. If the sureties had no personal estate out of which the judgment could be collected by execution, a second action might, in many cases, be necessary to enable the plaintiff to collect the amount due and to enforce the statutory lien existing in its favor.

I am, therefore, of the opinion, that the objection as to the form of the action must be overruled.

The remaining question to be considered arises upon the claim that payment should be enforced, in the first instance, from the real estate that belonged to Mr. Rodger.

As has been seen Rodger & Co. was insolvent on December twentieth. Between that time and January second, $800 was-deposited in the bank" by. Campbell. On the last-named day Rodger died. On the third and fourth, $575 more was deposited. On the seventh Green made the general assignment. Depart of these deposits has ever been repaid. In the bank Mr. Rodger had a two-thirds interest. Green was insolvent-.

The result is, therefore, that Rodger & Co. received and retained $1,375 which is applicable to the payment of the firm debts. By so much the personal estate of Mr. Rodger is relieved of claims for which it would otherwise be liable. ; This is as-much so of the deposits made after his death, as of those made prior thereto. It may be true that this event dissolved the firm. It may he. true that thereafter Green had no right to receive deposits and his act in so doing would not bind the Rodger estate. But when he did receive them and did turn them over to the assignee without objection from anyone, the latter held them as an asset of the estate and the total claims against it will be by so much decreased.

As is said in Wilder v. Butterfield cited above, the collector is, on the face of the bond, the principal debtor. If he fails to pay his sureties are liable, -and if one of them should make the payment he would be entitled to call upon the other for contribution.

But here the facts lead to a different result. If Rodger were alive and paid this $1,375 to the plaintiff he could not call upon ihe collector, nor any one of the other sureties to indemnify him in whole or in part. The fact that he had received the taxes and benefited by them would be a sufficient answer to such a Maim. The fact that his firm appropriated the taxes and that the restdt of such an appropriation was to benefit Rodger, or his estate, makes him in equity the principal debtor.

It would be equally so if the payment were involuntary. If his land had been sold under a decree of the court, to make good the deficiency, he could not complain. Again as between these parties he is bound to make good the loss.

As against Rodger, therefore, Campbell and his cosuretieswould have been entitled to a decree that the lien of the bond be enforced against his real estate. Assuming, however, that Ms estate is insolvent, and his general creditors need to resort for satisfaction of their claims to his real estate (and it is only on this supposition that the administrators have any interest in the result of this case) have these creditors any equities in the matter which would lead to a different result?

Crisfield v. Murdock, already cited, is, I think, conclusive on this point. If a mortgagee having a specific lien acquired after the bond was filed cannot be heard on this subject, surely a general creditor cannot. And in the case mentioned the mortgagee was also a creditor.

. I -am, therefore, of the opinion that the plaintiff is entitled to the relief demanded in the, complaint.

Proper findings may be prepared. If they are not agreed upon they may be settled on proper notice.

Ordered accordingly.  