
    SUPREME COURT.
    Cornelius W. Van Voorhis, grantor of Charles Freemont Willis, agt. Joseph J. Kelly et al.
    
    
      Obstruction to iiüe — Or antee of lands held adversely may maintain action in name of grantor — Execution — When leave to issue must be obtained.
    
    A deed of lands held in adverse possession, is void as against the party in possession, and an action will lie against him in the name of the grantor notwithstanding such,deed.
    Under section 284 of the Code of Procedure, an execution issued after the lapse of five years from the entry of judgment, without leave of the court, is irregular, and should be vacated. The law supposes the judgment to be unpaid for five years. After that time it presumes payment, and requires the plaintiff to show by proof that the judgment, either in whole or in part, is still unpaid.
    
      Special Term,
    
    
      May, 1883.
    It appears that on June 8,1836, Cornelius W. Van Voorhis, the plaintiff, was seized and possessed in fee of two certain lots of land in the city of New York, on the east side of Fifth avenue, commencing twenty-five feet two inches south of Ninetieth street, and being each twenty-five feet two inches wide, front and rear, and 102 feet two inches in depth.
    On April 1, 1851, Ellis S. Mills, as executrix, recovered a judgment, in the marine court of the city of New York, against Van Voorhis, for fifty-seven dollars and forty-three cents, a transcript of which was filed in the office of the clerk of said city and county, August 2, 1851.
    About the year 1858, Elizabeth Tinker, who owned an adjoining lot, took possession, as the defendants insist, of the premises in question, inclosed the same, and subsequently paid the taxes and assessments imposed thereon and claimed to hold the same adversely to the plaintiff. She also obtained an assignment of the Mills judgment, and on August 30, 1867, issued an execution thereon, out of the court of common pleas of the said city and county, whereby all the right, title and interest which Yan Yoorhis had in said premises on the 2d day of August 1851, was sold. This execution, though required to be returned within sixty days after its receipt by the sheriff to the clerk of the court from which it was issued, was not in reality returned or filed until December 7,1880.
    In the meantime a sale was made, under the execution, of Yan Yoorhis’ interest in the premises, and the same was conveyed to Elizabeth Tinker by the sheriff, by deed dated January 22, 1869.
    On April 20, 1881, Yan Yoorhis conveyed the premises to Charles Freemont Willis, and this action is brought against the heirs-at-law and devisees of Elizabeth Tinker, in pursuance of section 1501 of the Code of Civil Procedure, to set aside all proceedings under the execution and sale, to recover possession of the property and for an accounting.
    
      Wheeler S. Peckham and William Settle, for plaintiff.
    
      Theron G. Strong and John Townsend, for defendants.
   Larremore, J.

As to plaintiff’s right to maintain this action, I must follow the decision of the learned justice who overruled the demurrer interposed to the complaint, and hold that the suit is well brought in the name of Van Voorhis (Hamilton agt. Wright, 37 N. Y., 502; Lowber agt. Kelly, 9 Bosw., 494).

The only equitable relief that the plaintiff can ask on this trial is the setting aside of the proceedings and sale under the Mills judgment. The ultimate recovery of the land in dispute must be had under the rules and practice governing an action of ejectment, and upon that issue the defendants are entitled to a trial by jury.

It is, therefore, only necessary to consider that branch of the case which is properly cognizable by a court of equity — viz., the alleged fraudulent proceedings under the judgment referred to, as an obstruction to plaintiff’s title.

An attempt was made to show that an execution had been issued .from the marine court upon this judgment within five years from its rendition. There is no record evidence of this fact, and the oral testimony offered is both unsatisfactory and unreliable. But if it were true it fails to meet the requirements of section 284 of the Code of Procedure, which contemplates that such an execution should be issued in conformity with the practice of the court from which leave to issue the same upon such judgment might have been granted.

On August 2, 1851, it became a judgment of the court of common pleas of the .city and county of ISFew York for the purpose of enforcement.

On August 30, 1867, an execution was issued upon it without leave of that court or knowledge of the judgment debtor whereby his title is sought to he divested.

As a judgment of the marine court it was not a lien upon the real estate of the plaintiff. As a judgment of the court of common pleas it was subjected to its rules and practice. Without leave of that court, as above stated, an execution was issued upon it and proceedings had which resulted in the sale under which Mrs. Tinker and her devisees claim title. She knew that Van Voorhis was the owner of the record title to the premises, and her attorney testified that the execution sale was to make a title to the lots. Is such a transaction consistent with good faith and fair dealing?

It was held by judge Ingraham, in Field agt. Paulding (3 Abb. Pr., 139), that under section 284 of the Code of Procedure an execution issued after a lapse of five years from the entry of a judgment, without leave of the court, was irregular and should be vacated; that “ the law supposes the judgment to be unpaid for five years. After that time it presumes payment and requires the plaintiff to show by proof that the judgment either in whole or in part is still unpaid.”

Granting that a sale under such an execution was voidable only (Wallace agt. Swinton, 64 N. Y., 193) the question of laches appears to he evenly divided between a judgment debtor, without notice of the execution and sale, and a judgment creditor and her assignee who slept upon her rights for sixteen years and then sought to enforce a specific lien against the debtor’s property.

In this connection the gross inadequacy of value becomes important, and coupled with the motive that induced the sale establishes a presumption of constructive fraud.

Van Voorhis testified that at the time such execution was issued he had sufficient personal property to satisfy the judgment. His interest in' the premises, at that time variously estimated from $17,000 to $25,000, was sold for $150. The execution was not returned or filed until more than thirteen years after it was issued.

Hnder all the circumstances disclosed by the evidence the plaintiff cannot be convicted of laches and he is entitled to judgment setting aside the execution and sale, but issues must be settled and tried by a jury as to the possessory title claimed by the defendants, and if that is found in plaintiff’s favor an accounting may then be had as to the moneys due for use and occupation and the payments made for taxes and assessments.

As the plaintiff is entitled to some equitable relief the action must be retained for that purpose (Sternberger agt. McGovern, 56 N. Y., 12).

When the question of the title by possession is disposed of this court will finally adjudicate upon the rights and interests of the parties.  