
    Herman C. Baskin et al., App’ts, v. Henry Huntington, Ex’r, et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 15, 1891.)
    
    Judgment—How enforced after death of debtor.
    No distinction is made in the statute as it existed prior to § 7S8, Code Civ. Pro. between judgments recovered on sole, on. joint or on joint and several contracts, nor is there any exemption of the land of a deceased surety contracting jointly and severally with a principal and against both of whom a judgment has been recovered.
    Appeal from an order of the general term of the supreme •court of the fifth judicial department, which reversed a judgment declaring a money judgment not a lien on plaintiffs’ land and restraining defendants from selling it by virtue of the judgment, with costs, entered on the report of a referee.
    February 22, 1875, Mary E. Huson as principal, and William It. Baskin and James L. Brewer as sureties, made their joint and several promissory note by which they promised to pay John T. Andrews and James Huntington, or bearer, $800, March 1, 1876, with interest. June 7, 1876, the payees in the note recovered a judgment thereon against the principal and sureties for $854.33, damages and costs. When the judgment was entered William It. Baskin owned land in the county of Yates on which the judgment became a lien. June 7, 1877, William R. Baskin died intestate, leaving the plaintiffs in this action, Lyman J. Baskin and Winifred E. Baskin, his children and only heirs at law and next of kin, and Eliza A. Baskin, his widow, who died November 21, 1879, Before this action was begun the plaintiffs had succeeded to the interests of Lyman J. and Winifred E. Baskin and now are the owners in fee of the lands of which William It. Baskin died seized. Whether he left personalty or whether letters of administration were issued on his estate does not appear. March 11, 1881, the plaintiffs in the aforesaid judgment (John T. Andrews and James Huntington) caused an execution to be issued thereon against the property of the defendants therein and March 14,1881, delivered it to Charles Bell, then the sheriff of the county of Yates. The referee finds that the execution directed the sheriff to collect the amount of the judgment with interest, in which it differs from the allegation in the complaint, wherein it is averred he was directed to collect $906.69 with interest on $854.33 from January 10, 1880. The sheriff had a deputy by the name of R. Baskin, to whom he delivered the execution. December 31, 1882, the official term of Charles Bell as sheriff expired, since which he has not held the office of sheriff, nor has Baskin the office of deputy sheriff. From January 1, 1883, until December 31,1885, Charles Speelman was sheriff of the county of Yates and from January 1, 1886, to December 31, 1888, Michael Pearce was the sheriff of said county. August 8, 1885, James Huntington, one of the plaintiffs in said judgment, died leaving a last will and testament which was duly probated and letters testamentary issued thereon to Henry Huntington; who is now acting as executor of said will.
    April 7, 1886, Charles Bell, as late sheriff, by B.' Baskin, deputy, advertised that he would, pursuant to the aforesaid execution, sell May 22,1886, all of the interest which William B. Baskin had in said land at the date of the recovery of the judgment. Mary B. Huson, the principal, and James L. Brewer, the co-surety, are insolvent.
    May 20, 1886, this action was begun to set aside the judgment and restrain the plaintiffs therein, the defendants herein, from selling the land of the plaintiffs under the execution. The case was tried before a referee on the pleadings and an admission, no evidence being given by either side, that William B. Baskin was a surety for Mary B. Huson on the note and had no part of its consideration. The counsel for the plaintiffs then moved for a judgment on the following grounds : (1.) “ That the defendant ex-sheriff Bell, who is seeking to enforce the judgment against the property of the plaintiffs, had not at the time he ceased to be sheriff of Yates county commenced the execution of the mandate or process by the collection of money thereon, or by seizure or levy.upon money or other property by reason thereof.” (2.) “Upon' the ground that by the death of William B. Baskin his estate and lands of which he died seized are discharged from the judgment.” (3.) “ That the judgment mentioned in the complaint has ceased to be a lien upon any lands of which William B. Baskin died seized.”
    The defendants moved to dismiss the complaint on the following grounds: (1.) “That it does not state facts which constitute a. cause of action.” (2.) “That all the relief asked for in the complaint could have been obtained by motion and that there was no-necessity for a resort to an action.” (3.) “ That the gravamen of the complaint is only such as would bind the defer dont Andrews,, and in no way affects or charges James Huntington, the testator, or the defendant Henry Huntington who is the executor of James Huntington.” The referee overruled the motion of the defendants, and granted the motion made in behalf of the plaintiffs and thereupon signed a decision containing findings of fact and conclusions-of law. He held that on the death of William B. Baskin his-estate was discharged from all liability on the judgment, and directed a judgment vacating and setting aside the execution and restraining the defendants from thereafter attempting to enforce the payment of the judgment or execution. The defendants excepted to this conclusion of law, and took an appeal to the general term, where the judgment was reversed and a new trial granted. Thereupon the plaintiffs appealed from the order to this court, stipulating that if it was affirmed, judgment absolute should be-, rendered against them, with costs.
    
      John Gillette, for app’lts; Martin J. Sunderlin, for resp’ts.
    
      
       Affirming 24 St. Rep., 874.
    
   Follett, Ch. J.

By statute, a judgment becomes a lien on the land of a judgment debtor which is within the county wherein the judgment is docketed, 2 R. S., 359, § 3, which is superseded. by Code Civ. Pro., § 1251, and a mode for enforcing the lien after the death of the judgment debtor is provided. Code Civ. Pro., §§ 1252, 1379, 1380, 1381. Sec. 1380 provides: “ 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 judgment debtor was still living.” This provision was taken from § 1, chap. 295, of the Laws of 1850, so that it was a part of the statute law of this state when the obligation upon which the judgment was recovered was given. Ho distinction is made in the statute between judgments recovered on sole, on joint, or on joint and several contracts ; nor is there any exemption of the land of a deceased surety contracting jointly and severally with a principal and against both of whom a judgment has been recovered. The judgment was reversed, and William R. Baskin died before § 758 of the Code of Civil Procedure took effect.

The rule that a judgment revovered against two or more joint contractors may be enforced against the land of one of the debtors who has died and upon which it has become a lien, is recognized or declared in the following cases: Trethewy v. Ackland, 2 Saund., 48, see note; Reed v. Garvin, 7 S. & R., 354; Commonwealth v. Mateer, 16 id., 416; Stiles v. Brock & Co., 1 Pa. St., 215.

In the case last cited it was said: “ How, that one of two joint debtors dying is thereby discharged, both in person and estate, at. law, from the payment of a debt, is too well established to be controverted, unless the debt become a lien on his estate in his lifetime, in which latter case, the property on which the lien existed, may be taken to satisfy the debt.”

We are not called upon to determine whether the judgment which the defendants are seeking to enforce against the realty on which it became a lien can be collected out of the other property of the deceased surety, for no such attempt has been made. It is unfortunate that the record does not show whether this execution was issued pursuant to §§ 1379, 1380 and 1381 of the Code of Civil Procedure, and also that it does not disclose whether the sheriff had begun to execute the execution by the collection of money thereon as provided by §§ 184 and 186 of the Code of Civil Procedure. The record does not enable us to determine whether the execution is a legal lien, nor, if it is, whether the defendant, ex-sheriff Bell, is in a position to make a valid sale by virtue of it. Whether a purchaser can acquire title under a sale made under this process by the ex-sheriff must be left undetermined until the question arises and the necessary facts are before the court.

The order should be affirmed and judgment absolute rendered against the appellants, with costs.

All concur.  