
    RANDOLPH a. LEARY.
    
      New York Common Pleas;
    
      Special Term, February, 1857.
    Mechanic’s Lien.—Nature of Foreclosure Proceedings.— Operation 'of Sale.
    The proceeding to foreclose a mechanic’s lien (under the act of 1851) is an equitable one ;—is a proceeding in rem and not in personam ;—and operates only as the foreclosure of a lien and not as an action for the collection of a deht.
    The sale of property authorized to be made on foreclosure of a mechanic’s lien, is an absolute sale, as in case of foreclosure of a mortgage, of all the interest of the owner.
    The provisions of 2 Revised Statutes, 8Í0, allowing a right of redemption on the sale of real estate by virtue of an execution, are inapplicable to sales made upon the foreclosure of a mechanic’s lien.
    Motion to require the sheriff of the city and county of New York to give a deed of premises sold by him on an execution issued in proceedings to foreclose a mechanic’s lien.
    
      F. S. Goodale, for the motion.
    
      Brown, Hall & Vanderpool, opposed.
   Ingraham, F. J.

—The Sheriff, having sold the interest of the defendant in certain real estate which was subject to a mechanic’s lien, by virtue of a judgment and execution in this action, refuses to execute a deed of the premises sold, upon the ground that he is only required to give a certificate of sale, as in cases of sales of the defendant’s interest in real estate for ordinary claims, so that the same may be redeemed under the statute.

The act under which the lien is created (Laws of 1851, 953), is silent as to the duty of the sheriff in selling the defendant’s interest in the premises subject to the lien.

The first section gives a lien for the amount upon the lot of land, to the extent of the defendant’s interest at the time of creating the lien.

The fourth section provides that the claimant may enforce and bring to a close such a lien by serving a notice, &c., on the debtor. These provisions show the intent of the act to be the creation of a lien on real estate, which is to be foreclosed by a proceeding in the form of an action; which lien is to continue until the judgment is recovered and payment enforced by legal proceeding. In pursuance of such a construction, we have heretofore held that a proceeding under this statute is an equitable one. In original!y construing the statute, we were compelled to adopt the opinion that, in the proceedings under it, the court must act as a court of equity, and that the remedy was one of an equitable, rather than of a legal character. (Doughty v. Devlin, 1 E. D. Smith, 644.)

And in Cronkright v. Thomson (Ib., 661), we also held that the proceeding was not to recover money from the defendant, personally, but was a proceeding m rem, to foreclose a lien upon property; and in Gridley v. Bowland (Ib., 670), that it was a foreclosure of a security, and formed no defence (until paid) to proceedings to recover the money in a personal action. (See also Sullivan v. Decker, Ib., 699 ; Carpenter v. Jacques, 2 Ib., 571).

In Eagleson v. Clark (2 E. D. Smith, 644), the court decided the form of a judgment to be in that case proper, declaring the sum due to be a lien upon the premises, and directing the sale of the interest of the defendant therein, &e.

In Althouse v. Warren (Ib., 657), Judge Daly, adopting these views, directed a judgment to be entered declaring the amount of the lien, directing a sale of the defendant’s interest, and that the sheriff report, &c.

From a view of all the cases, it is apparent that from the first adjudication upon this statute the court has been compelled to treat the proceeding as an equitable one, as in rem, and not m personam, and as .only the foreclosure of a lien, and not the ordinary action for the collection of a debt.

The objection that payment of the judgment is to be enforced by execution, as in other actions, is qualified by the seventh section, which says the execution is to be issued for the enforcement of the claim or Ken ; and we have also held that the execution cannot be in the ordinary form, inasmuch as the same cannot be enforced against any other property of the defendant than the land subject to the lien, except in cases where a personal liability also exists on his part, and must specially direct the sheriff what he shall sell in pursuance of the judgment.

I have no hesitation, therefore, in regard to the question now before me, in adopting the conclusion that the sale of the defendant’s interest to be made under this statute was intended to be an absolute sale, in the same manner as under the foreclosure of a mortgage, of all the interest of the owner to the extent of such interest at the time the liability was incurred.

It was urged, however, in opposition to this motion, that the provisions of the Revised Statutes (2 Rev. Stats., 370), allowing a right of redemption on the sale of real estate by virtue of an execution, apply to this case.

That statute applies only to personal actions, and not to proceedings in rem, and' the mere fact that the lien law directs an execution to issue to enforce the judgment, does not bring it within the purview of that act. The Revised Statutes apply to the case of executions issued against the goods and chattels of the debtor; and the form is prescribed to be against the personal property first, and then the real estate, and it relates to real estate held by the debtor at the time of docketing the judgment. Under the lien law, nothing belonging to the debtor is to be sold except an interest in a specified piece of land, and then only as it existed at a time prior to the commencement of the action. The provisions for redeeming, also, would, in many instances, be found inapplicable to such a case, and the security contemplated by the lien law would be materially changed if such redemption were made applicable to sales under this statute.

But whatever view may be taken of this question prior to the act of 1855 (laws, 760, ch. 404), there can be no doubt of the intention under that statute. The first section prescribes the form of the judgment to be a direction “ of the sale of the de fendanfs interest i/n the land and premises upon which the lien exists, to the extent of the owner's right at the time of filing of the notice of the law," and directs a distribution of the proceeds in part, and the surplus to be brought into court. It also provides for a distribution of such residue by the court.

Section 4 directs that such sale shall be made subject to all prior liens, unless the persons holding them are made parties, in which case the court is to settle their respective rights.

These provisions are intended more clearly to assimilate the proceedings under this act to the foreclosure of a mortgage, and I think it must be governed by the same rules.

It may be well doubted whether, under the act of 1855, there is now any necessity to issue an execution merely for the sale of the defendant’s interest, if no costs or other moneys are to be collected. The act speaks of sales of the defendant’s interest under the judgment which specially directs the sale; and the change which is made by the statute, or rather the legislative,, interpretation given by that to the former statute, might warrant a proceeding in this case, the same as in the case of foreclosure of mortgages.

The motion is granted and without costs. 
      
       The case of Smith a. Corey afterwards came before Judge Ingraham, at the same term, upon a similar motion to that made in the above case—viz., to compel the sheriff to execute a deed of premises sold by him in foreclosure of a mechanic’s lien. The motion was denied, upon grounds which appear in the following extract from the opinion:
      Insraham, F. J., after stating the facts.—For the reasons stated in the case of Randolph a. Leary, decided by me at this Term, February, 1851, I am of the opinion that the judgment was not erroneous; that the sale of the defendant’s interest is absolute; that the defendant has no right of redemption; and that the sheriff should execute the deed as required by the plaintiff in this motion. I refer to my opinion in that case for the reasons upon which it is founded.
      There is, however, a difficulty in this case which prevents the granting of this motion. On referring to that certificate of sale, I find that the sheriff sold the property described and not the interest of the defendant in the property on the day of filing the notice, as directed by the judgment; that such property was sold also subject to mortgages and judgments thereon; and an order directing the sheriff to give a deed of the premises as sold, would direct a conveyance of the property, and not of the interest of the defendant in the property at the time of filing the notice to create the lien.
      The sale in this form was erroneous, and not warranted by the judgment. The statute is positive in directing what shall be sold. Section 1 of the amendatory act (Laws of 1855, 160), provides that the judgment shall direct the sale of the interest of the owner in the land, to the extent of the right of the owner at the time of the filing of the notice of lien. Section 4 provides that such sale shall be made subject to any prior lien existing thereon. It is not necessary to sell subject to mortgages or other incumbrances; because if the sale is properly made of only the defendant’s interest, such sale must be subject to the rights and interests of any other person in the premises.
      The motion must on this account be denied, and a re-sale of the plaintiff’s interest ordered.
     