
    Frank E. Flanders, App’lt, v. George W. Batten, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    
      Execution—Code Civ. Peo., § 1869.
    An execution issued against the property of one of two defendants in a judgment is not void.
    • Appeal from judgment entered on verdict of Niagara circuit and from order denying motion for a new trial on case and exceptions.
    This action was brought to recover for the alleged conversion by the defendant of a quantity of personal property of the plaintiff. The defendant, by way of justification, alleged that he was sheriff of the county of Niagara, and that he levied upon and sold the property by virtue of an execution issued upon a judgment against Webster Flanders and others, and that by such execution he was commanded to satisfy the judgment out of the property of Webster Flanders, who had an interest in the property subject to levy and sale, and that the plaintiff’s claim of title was fraudulent as against the creditors of such judgment debtor.
    It appeared that on July 3, 1886, one Joseph Riddle recovered a judgment against Webster Flanders, Hiram Flanders and Alexander D.. Colt for upwards of $2,000; that on the 14th of that month an execution was issued which on the same day was received by defendant as such sheriff. The execution recited the recovery of the judgment, the names of the parties to it, and directed the officer to satisfy it out of the personal property of Webster Flanders, and if sufficient could not be found, then out of the real property belonging to him on the 14th day of July, 1886, or at any time thereafter. The personal property in question was taken and sold by virtue of such execution, which constitutes the alleged conversion. The plaintiff’s claim of title to the property was derived from a written bill of sale made of it to him by Webster Flanders, June 29, 1886.
    The verdict of the jury was for the defendant.
    
      Hansom & Joyce, for app’lt; John E. Pound, for resp’t.
   Bradley, J.

The finding of the jury that the sale and transfer by Webster Flanders to the plaintiff of the property in controversy was fraudulentas against the creditors of the former, was supported by the evidence. The main question for consideration on this review, is whether the execution was-void. While it correctly recited the judgment, stating the names of the parties in whose favor and against whom it was rendered, as provided by statute (Code Civ. Pro., § 1366), it directed the sheriff to satisfy it out of the property of one only of the three judgment debtors. It is the usual practice to embrace in such direction of an execution all the parties jointly charged by the judgment upon which it is issued. And if that is essential to the validity of the execution, the contention of the plaintiff’s counsel must be sustained. The statute provides that except in a case where special provision is otherwise made by law, the execution must substantially require the sheriff to satisfy the judgment out of the property of the judgment debtor. Id., § 1369. The execution in the present case is not within any such special provision. The statute does not in term provide that the execution must direct the officer to satisfy the judgment out of the property of all the judgment debtors when there is more than one. The practice usually declared in that respect before it became statutory, was, that upon a judgment- against two or more, a separate-execution against one should not be issued, but that it should strictly pursue the judgment and issue against all of them. 1 Burrill's Pr., 289. And upon the proposition that an execution in such case issued against one of several defendants was void, is cited the case of Clarke v. Clement and English (6 Term [D. & E.], 525). That case has no necessary application to the question here. There it was held that the discharge from arrest of one of two defendants taken on ca sa operated to discharge the other from liability to arrest, and therefore the execution against him was quashed. And such was the common law doctrine which remains applicable, except so far as it has been modifled by statute. Kasson v. The People, 44 Barb., 347. The enquiry in the case at bar is not necessarily whether the judgment debtor against whose property only, the execution was issued, .may have effectually taken objection by motion to set it aside as irregularly issued in that manner, and upon that question no opinion is now expressed. An execution may be voidable and not void. Renick v. Orser, 4 Bosw., 384; Abels v. Westervelt, 15 Abb., 230; Van Deusen v. Brower, 6 Cow 50; Hutchinson v. Brand, 6 How., 73; S. C., 9 N. Y., 208; Bacon v. Cropsey, 7 N. Y., 195: Benedict, etc., Co. v. Thayer, 20 Hun., 547; Peck v. Tiffany, 2 N. Y., 451; Walker v. Isaacs, 36 Hun, 233; Hunt v. Loucks, 38 Cal., 372; S. C., 99 Am. Dec., 404.

If the execution had, in form, been issued against all the judgment-debtors, the sheriff would have been required, if so directed by the attorney for the judgment-creditor, to have executed it upon the property of any one of them. Root v. Wagner, 30 N. Y., 9. And such’direction may have been effectually given by indorsement upon the execution or orally. In view of that right and duty, it was held in Crossitt v. Wiles (13 N. Y. Civ Pro. R., 327), that an execution might properly be issued against only one of two defendants in a judgment. And see Whitman v. James, 10 Daly, 490; aff’d 89 N. Y., 635. The party against whose property the execution was issued, was charged with the liability by the judgment, and whatever view may be taken of the regularity of the execution, we think it was not void; and therefore that the levy and sale were not rendered ineffectual for want of validity of the process. In the cited case of Dunham v. Reilly (110 N. Y., 366), the execution was held void because issued in violation of the statute. And in Place v. Riley (98 N. Y., 1), the execution in an essential respect did not conform to the requirement of the statute, which in such cases definitely prescribed the direction which it should give to the officer, and control his action in executing it. The principles of those cases do not seem analogous or applicable to the question here.

In the present case the sheriff was by the execution directed as against the one judgment-debtor, to proceed for its collection in the manner required by the statute. Code, § 1369.

It is, however, urged that the requirement of the statute that the personal property be exhausted before resort is had to real property to satisfy an execution, has relation to all the parties jointly charged by the judgment, and that such purpose is defeated if the real property of one may be sold before the personal property of the others is taken and disposed of on execution. This rule necessarily applies to any judgment-debtor against whose property the sheriff may proceed to satisfy an execution and when his personal property fails to satisfy it, the officer may proceed to sell his real property upon execution. Andif such judgment-debtor may have any relief in that respect, 'it is available to him only by application to the court for direction tó the sheriff to proceed against the personal property of his associates in the judgment. The fact that the execution in .this case directed, on failure of sufficient personal property to satisfy it, that the sheriff then proceed against the real property belonging to the judgment-debtor, on or after a day specified, which was several days after the judgment was docketed, was not available to the plaintiff in this action. It was but an error or irregularity in the process. And besides that the plaintiff - being a fraudulent vendee of the property, as against the creditors of the judgment-debtor, is not entitled as against the defendant to effectually assert for the purposes of this action, that the sheriff should have resorted to any real property of the judgment-debtor, before taking and selling the property in question for that purpose. The transfer .to him is deemed void as against the creditors of his vendor. Davis v. Leopold, 87 N. Y., 620.

These views lead to the conclusion that the judgment and order should be affirmed.

Barker, P. J., Haight and Dwight, JJ., concur.  