
    Abel R. Higgins, App’lt, v Abigail McConnell, Impl’d, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 20, 1892.)
    
    Attachment—May be levied upon interest oe purchaser of land.
    The interest of a defendant under a contract for the purchase of land, upon which he has made partial payments and is in possession, and entitled to a conveyance upon completing his payments, can be levied upon by virtue of an attachment duly issued in an action against him in the supreme court.
    (Haight and Brown, JJ., dissents.)
    Appeal from judgment of the general term, in the fifth judicial department, entered upon an order directing final judgment dismissing the complaint and reversing an interlocutory judgment in favor of the plaintiff entered upon an order of the special term overruling defendant’s demurrer to the complaint.
    
      J. F. Parkhurst, for app’lt; Hakes, Page & Acker, for resp’t
    
      
       Reversing 30 St. Rep., 958.
    
   Landon, J.

The question presented by the demurrer to the complaint is whether the interest of a defendant under a contract for the purchase of land, upon which he has made partial payments and is in possession, and entitled to a conveyance of the land upon completing his payments, can be levied upon by virtue of an attachment duly issued in- an action against him in the su-. preme court

We think it can. Section 644, Code Civ. Pro., provides that the sheriff must execute the warrant of attachment “ by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff’s demand, with the costs and expenses.” This in terms provides for a levy upon real property, and admits of the distinction between the property itself and an interest in the property, and suggests that the authority to levy upon the real property of the defendant is no authority to levy upon the real property of another in which the defendant has only some interest less than a legal estate. But § 645. was added; it was a new provision, and declared that “The real property which may be levied upon by virtue of a warrant of attachment includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant."

The interest of the defendant under this contract for the purchase of the land comprises the actual possession, the right of possession and the right to acquire the right of property. It is a valuable interest, and is alienable.

The question whether the interest of a person holding a contract for the purchase of land was bound by a judgment and could be sold upon execution, was, prior to the Revised Statutes, the subject of frequent and conflicting decisions. The court of errors in 1819, in Bogert v. Perry, 17 Johns., 351, held that it could not be, but the supreme court subsequently held that it could be, if the holder of the contract was in possession. Jackson v. Scott, 18 Johns., 94; Jackson v. Parker, 9 Cow., 73.

The Revised Statu tes provided that such an interest should not be bound by the docketing of any judgment or decree, nor sold by execution issued thereon. 1 R. S., m. p. 744, § 4. The question, as we learn from the reviser’s notes, was one of public policy, and in order to mitigate the injustice of the rule adopted, the following sections provided that such an interest might be reached by means of an action in the nature of' a creditor’s bill.

These provisions are substantially re-enacted in §§ 1253,1874M5, of the Code of Civil Procedure; the corresponding provisions of the Revised Statutes were repealed by chapter 245, Laws 1880.

Section 1253 provides that: “ The interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon or sold by virtue of an execution issued upon a judgment” It is thence argued by the defendant that the interest in question cannot be attached. But the argument is untenable if this section and § 645 are reconcilable, one with the other.

It does not necessarily follow that a provision as to the effect of a judgment and execution, in the absence of an attachment, controls other provisions as to their feffect when aided by an attachment. Section 1370 prescribes the requisites of an execution where a warrant of attachment issued in the action has been levied by the sheriff. Section 708, subd. 2, prescribes the duty of the sheriff to whom such an execution is issued. He does not relevy upon any of the attached property; the execution simply authorizes him to sell it.

There are valid reasons why an attachment should reach the interest of a holder of a contract for the purchase of land. He may be a non-resident and never come within the state so that personal service can be made upon him. In such case the personal judgment which must precede a judgment creditor’s action cannot be obtained. But if his interest can be seized upon .attachment, jurisdiction of that interest can be obtained and it can be disposed of to satisfy the domestic creditor. Code Civ. Pro., § 707. The reasons which withdraw the interest in question from the binding force of a judgment and execution are technical, .•and the relaxation of the rule in the case of attachments seems to ■be in the interest of substantial justice. The letter of § 645 permits this attachment; other provisions show the policy of the law :to be to extend the scope of this remedy; it can scarcely be doubted that when the framers of § -645 employed the words “ any interest in real .property ” to indicate what was attachable, that :this peculiar interest which had engaged the attention of the -courts and legislature was considered; and if we concede that it was not, it would still remain to be held that, if it had been con■sidered, the language of the section would have been different. It was held in Wright v. Douglas, 2 N. Y., 376, in reference to .the provision for the attachment “ of all the estate, real and personal. of such corporation,” that “ the statute in terms applies to an equitable as well as a legal interest inlands.” Section 645 does not appear to be less comprehensive, and we see no reason why we should narrow its scope by construction.

There is a provision in the contract that the vendee will not assign the same without the written consent of the vendors; this provision concedes the alienable quality of the interest and provides by the personal covenant of the vendee against it. Such a ■covenant is not broken where the transfer is by the operation of a judgment. Jackson v. Silvernail, 15 Johns., 278; Jackson v. Corliss, 7 id., 531; Smith v. Putnam, 3 Pick., 221. The defendant has not assigned. Roosevelt v. Hopkins, 33 N. Y., 81.

The judgment of the general .term should be reversed, with ■costs, and the interlocutory judgment of the special term affirmed, with caste of the general term.

All concur, except Haight and Brown, JJ., dissenting.  