
    
      HANNAH JANE HULL v. JAMES K. SPRATT and JAMES W. BOWNE, Appellants, and VERNON K. STEVENSON, Respondent.
    
      Vendee—lien of, for purchase-money paid—lis pendens — who bound, by judgment recovered after fling of.
    
    The defendant, Stevenson, brought an action against the defendant, Spratt, for the specific performance of a contract for the sale of certain real estate to him, notice of pendency of action being duly filed on the 29th of April, 1871, and on the 10th of June, 1872, a judgment was entered in his favor therein, by which it was adjudged, that, as the defendant, Spratt, was unable to specifically perform the said contract, the amount recovered thereby, should be a lien on the surplus moneys arising from a sale of the premises under a prior mortgage lien, from the time of the filing of the Us pendens. On the 18th of May, 1871, the defendant, Bowne, recovered a judgment against Spratt, which was duly docketed. The premises having been sold under a mortgage which was prior to the rights of either of these parties, held, that the defendant, Stevenson, had a lien upon the surplus moneys arising upon the sale, which was prior to that of Bowne, and that the judgment recovered by Stevenson, was evidence of this priority against Bowne, because the latter acquired his lien, under the debtor and vendor, after the notice of Us pendens in the action was filed.
    Appeal from an order affirming the report of a referee, directing the distribution of the surplus moneys, arising on a sale of premises, under the foreclosure of a mortgage. On the 2d of September, 1870, the defendant, Spratt, agreed to sell certain premises in the city of New York to the defendant, Stevenson, but, at the time appointed for the delivery of the deeds, he was unable to perform the contract on his part. In April, 1871, Stevenson commenced an action to compel the specific performance of this contract, the lis pendens being filed on the tw'eiityninth of April, and on the 10th of June, 1872, a judgment was entered in his favor, by which it was adjudged that he should recover of Spratt, the sum of $1,350, and the said sum was declared a lien on the surplus moneys arising from the sale of the premises, contracted to be sold under a prior mortgage lien, from and after the date of the filing of the lis pendens. On the 18th of May, 1871, the defendant, Bowne, recovered a judgment against Spratt for $4,452.58, which was duly docketed. The premises having been sold on the foreclosure of a mortgage, prior to both of these judgments, it was referred to a referee, to report as to the proper distribution of the surplus moneys arising upon the sale. He reported that the lien of the defendant, Stevenson, was prior to that of the defendant, Bowne, and, his report being confirmed by the court at Special Term, the defendant, Bowne, appealed.
    
      Ii. Brewster, for the appellant, Bowne.
    
      W. B. Peekham, for the respondent.
   Daktols, J.:

The respondent’s judgment, directed to be paid as a prior lien to the judgment recovered by the appellant out of the surplus moneys arising from the foreclosure sale, was recovered as a specific lien upon the fund. The action was brought to enforce the specific performance of a contract for the conveyance of the property, and a notice of Us pendens was properly filed in it, before the appellant recovered his judgment. And, as the property was sold under the foreclosure of a mortgage superior to the rights of either of these parties, the respondent recovered a judgment for the money he had paid upon his contract as a specific lien on the vendor’s interest in the fund. This was equitable and just, because, by the contract, the vendor became, in effect, a trustee of the title for the vendee. The property was equitably his, so far as the purchase-price was paid, and, to that extent, a judgment recovered against the vendor, did not become a lien upon it.

When the appellant recovered his judgment, it was subordinate to the action then pending in the respondent’s favor. He had previously filed notice of the pendency of his action, which rendered it the duty of the appellant to take notice of the proceedings in it. Indeed, it operated as notice to the appellant, whose rights to proceed against the fund were all afterwards acquired. By the judgment in the respondent’s favor, so much of the fund as was necessary for that purpose, was appropriated to its payment. And, so far as the appellant was concerned, whose judgment simply became chargeable on the interest of his debtor, it took effect from the time the notice of the pendency of the.action was filed. “

It was, therefore, rightly held, that the respondent’s specific lien upon the fund, should be discharged before anything could be paid to the appellant, who, at most, had but a general lien. And the judgment was evidence against the appellant of this priority, because he acquired his lien under the debtor and vendor, after the notice of the pendency of the action was filed. That was sufficient to conclude him by means of the respondent’s judgment afterwards recovered in the same action.

But, by the judgment, the respondent was only entitled to be paid the amount recovered by him as a lien upon the fund. And that was the sum of $1,114.72, with interest from April 22,. 1872, while the report of the referee, and the order confirming it, awarded him that amount, with interest from April 22, 1871. The order and the report should be modified so as to direct the amount to be paid, with interest from April 22, 1872, and, as so modified, affirmed, without costs.

Davis, P. J., and Brady, J., concurred.

Order modified, and, as modified, affirmed. 
      
       Wilkes v. Harper, 2 Barb. Chy., 339; Matter of Howe, 1 Paige, 125.
     
      
       Code, § 132; Harrington v. Slade, 22 Barb., 162-166.
     