
    Harris Bernstein, Respondent, v. Morris Schoenfeld, Appellant.
    
      Oloud on title — when equity will entertain an action to remove it—judgment docketed, under a fictitious name — amended nunc pro tunc, after the title to real property has passed from the judgment debtor to a bona fide purchaser—an execution issued and a sale advertised thereunder threaten to create a cloud.
    
    A judgment obtained in the Municipal Court of the city of New York docketed against “ Mrs. Dr. ‘Annie’ Maurer, first name being fict., real name unknown to plff.,” does not, although it appears that the party intended to be sued was Aurora Maurer and that she appeared and answered in the action, constitute a lien upon real property belonging to the said Aurora Maurer at the time the judgment was docketed, which is enforcible against the property in the hands of a person who purchased the same for a valuable consideration, in good faith and without knowledge or notice that the judgment was against his grantor.
    Where, after the purchase of the property and the recording of the deed of conveyance, the judgment creditor obtains an order amending the docket nunc pro tunc as of a time prior to the purchase of the property, by striking out the words “Mrs. Dr, ‘Annie,’ first name fict., real name unknown to plff,” and inserting the name “Aurora Maurer,” and the judgment creditor proceeds to issue an execution upon the judgment and advertises the property for sale thereunder, the purchaser is entitled to maintain an action in equity to have the judgment as docketed removed as an apparent cloud upon the title to his property.
    
      Where the rights of the parties depend upon the legal construction of a written instrument, an action to correct the instrument or to declare it invalid, under the jurisdiction of courts of equity to remove clouds upon title, cannot be maintained. The court will not entertain such ,an action to remove a doubt which might be created in the minds of persons dealing with the title, provided the means of forming a correct legal judgment are patent on the face of the instrument or proceeding by which the existence or non-existence of the right in question must be determined.
    To justify the' bringing of the action, the lien must be apparently valid and must exist under such circumstances that it may in the future embarrass or injure the owner or endanger his title.
    The jurisdiction of the court may be invoked to prevent a- threatened cloud, as well as to remove an existing one.
    Van Brunt, P. J., and Laughlin, J., dissented.
    Appeal by the defendant, Morris Schoenfeld, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 17th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the judgment theretofore recovered by the defendant is not a lien upon property therein described and enjoining and restraining said defendant from asserting or enforcing any lien thereon.
    
      C. Andrade, Jr., for the appellant.
    
      David B. Ogden, for the respondent.
   Ingraham, J.:

The action was brought to remove a cloud on the title of certain property owned by the plaintiff. On April 15,1901, the defendant obtained a judgment in the Municipal Court of the city of New York for $250.75. The summons in that action was entitled Morris Schoenfeld vs. “ Mrs. Dr. ‘ Annie ’ Maurer, first name being fictitious, real name unknown to plaintiff.” This summons was- served upon one Aurora Maurer. She appeared in the action and answered, and the plaintiff subsequently obtained a judgment. A transcript of that judgment, was filed with the county clerk on April. 15, 1901, and in that transcript the defendant was named “ Mrs. Dr. ‘ Annie’ Maurer, first name fict. real name unknown to plff.” and the judgment was docketed against this fictitious person. When this judgment was entered Aurora Maurer was the owner of certain property described in the complaint, and on the 18th day of April, 1901, she conveyed this property to the plaintiff, who thereupon became vested with the title thereto. Upon a search for judgments against Aurora Maurer, the grantor, there was a note See a Judgt. 1901, Apr. 15, agst. Mrs. Dr. Annie Maurer.” The plaintiff inquired of the grantor as to this judgment and received from her an affidavit that there were no judgments or decrees, or attachments, or orders of any court or officer for the payment of money against her, or to which she is a party, unsatisfied or not canceled of record in any of the courts, or before any officer of the United States, or of this State, or any suit or proceeding pending anywhere affecting said premises, to her knowledge, information or belief, and that any judgments found of record ” were not against the deponent. Upon being asked about this particular judgment, she stated that it was not against her.’ The plaintiff paid for the conveyance of this property the sum of $25,250, and his deed was duly recorded on the 18th day of April, 1901.

On July 16, 1901, the plaintiff in the action in the Municipal Court applied to the Special Term of the Supreme Court for an order amending the docket of this judgment. The affidavit upon which this application was made stated that the summons in the Municipal Court action was personally served upon Aurora Maurer on the 10th day of April, 1901; that she appeared generally in that action by an attorney and answered the complaint upon the merits; that at the request of the defendant the cause was adjourned to the 11th of April, 1901, and again to the 12th of April, 1901; that upon the adjourned day the defendant presented to the court a certificate of a physician'that Mrs. Aurora Maurer of 118 Chrystie street, New York city, was sick; that on the 15th day of April, 1901, the plaintiff obtained á judgment by default against the defendant for $250.75, and filed a transcript of such judgment in the office of the county clerk, which was docketed in his office and execution issued therein; that through inadvertence the clerk issued such transcript in the name stated in the summons, and not in the name given by the defendant; that such defendant thereafter made a motion in the action, and her true nanie was inserted in the moving papers, all of which are on file in the office of the clerk of the court wherein such judgment was rendered. Upon that affidavit an order of the .Special Term was entered on the 16th day of July, 1901, whereby it was ordered “ that the summons and all other papers, pleadings and proceedings herein, the execution issued out of and the judgment docketed in the office of the clerk of this court on the 15th day of April, 1901, be and the same hereby are amended, nuncjpro tuno as of their respective dates by striking out the name of Mrs. Dr. Annie ’ Maurer, first name fictitious, real name unknown to plaintiff, wherever the same appears, and inserting in lieu and instead thereof the name of Aurora Maurer, as the defendant in this action, without prejudice to any of the proceedings already had, and that the clerk of this court correct and amend his docket and records accordingly.” In pursuance of this order the clerk amended the docket by striking out the words “ Mrs. Dr. Annie ’, first name fict. real name unknown to plff.,” and inserting the name “ Aurora Maurer.”

Subsequently upon this docket of the judgment, an execution was issued and a sale of the property of the plaintiff under that execution advertised by the sheriff; whereupon this action was commenced on the 23d of July, 190Í, to remove this record of the judgment as amended by the order of July 17,1901, as a cloud upon the plaintiff’s title and to enjoin the sale by the sheriff under the execution.

The original summons in the Municipal Court has the words “ Amended. by order to' Aurora,” inserted after the name of the defendant in the title. The attorney for the plaintiff in the Municipal Court action testified upon the trial of this action that subsequent to the fifteenth of April, when judgment was granted and the transcript filed with the county clerk, the defendant moved to open the default; that preparatory to opposing the motion he discovered that the judgment was entered against “ Mrs. D.r. Annie ” Maurer, and not against the defendant by her right name. The order to show cause why the default should not be opened was served on April 16, 1901. It does not appear upon what day the record was actually amended. The plaintiff acquired title to the property on the 18th of April, 1901.

It seems to be quite clear that this judgment as originally entered as against “ Mrs. Dr. Annie ” Maurer, the first name being fictitious, was ■ not sufficient to create any lien upon the property of Aurora Maurer. By section 1369 of the New York charter (Laws'of 1897, chap. 378) the proceedings in the Municipal Court of the city of New York were regulated by sections 3215 to 3222, inclusive, of the Code of Civil Procedure. By section 3220 of the Code, sections 3017 to 3022, both inclusive, apply to a judgment rendered in this court and subsequent proceedings; but there seems to be no provision making section 2884 of the Code applicable to actions commenced in the Municipal Court. Section 3220 provides that a judgment, a transcript of which has been so filed, is to be deemed to be a judgment of the Supreme Court arid enforced accordingly. By section 1246 of the Code, the county clerk is required to docket a judgment by entering in the proper docket book the following particulars under the initial letter of the surname of the judgment debtor, in its alphabetical order: “ 1. The name, atlength, of the judgment debtor;, and also his residence, title and trade or profession, if any of them are stated in the judgment.” Sections 1247 and 3017 provide that the county clerk to whom a transcript of the Municipal Court is presented, must, upon payment of his fees therefor, immediately file it, and docket the judgment, as prescribed in section 1246 of the Code; and section 1251 provides that the judgment “which is docketed in a county clerk’s office, as prescribed in this article, binds» and is a charge upon, for ten years after filing the judgment-roll, and no longer, the real property and chattels real in that county, which the judgment debtor has at the time of so docketing it, or which he acquires at any time afterwards, and within the ten years.”

It would seem that to create a lien under this provision of the statute, the name at length of the judgment debtor must be entered in the proper docket book under the initial letter of the surname of the judgment debtor, and it is only a judgment which is docketed as thus prescribed that becomes a lien upon the real property of the defendant under section 1251 of the Code. Our attention has not been called to any provision allowing an action to be commenced in the Municipal Court against a defendant whose name is unknown ; but assuming that section 2884 of the Code would be applicable to an action in the Municipal Court, the only authority there given is that the defendant may be designated in the summons, and in any other process or proceeding in the action by a fictitious name, or by so much of his name as is known. While, under that section, it is possible that a justice would be authorized to render the judgment against the person described in the summons as the- defendant, "until the proceedings were amended by the insertion of the true or full name of the defendant, in place of. the fictitious name used in the summons to.designate the person sued, there could be no docket oí the judgment under section 1246 of the Code, which would be a lien upon the real property of the defendant designated by the fictitious -name, that would be superior to the title of a Iona fide purchaser of ■the property for value, who had acquired the title to the property before the judgment was docketed as prescribed by sections 1247 and 3017 of the Code. The judgment only becomes a lien against the .property of a person where the name at length of the judgment debtor is entered in the docket book of the county clerk; and as the full name of Aurora Maurer had not been so docketed when the plaintiff acquired title to the property, he undoubtedly acquired the property free from any lien of the judgment. There was nothing in the docket to suggest to the purchaser that this judgment was against Aurora Maurer. The defendant in that'action was described as “ Mrs. Dr. Annie ’ Maurer, first name being fictitious, real name •unknown to plaintiff.” The plaintiff was entitled to stand upon the .record of that judgment, and that record did not create a lien against the property of Aurora Maurer.

The Special Term of the Supreme Court, however, amended this •docket nunepro tuno as of the 15th day of April, 1901, by striking out -the fictitious portion of the name of the defendant and-inserting therein the name. “ Aurora Maurer,” the plaintiff’s grantor. It granted this order upon the statement of the fact that the record of the Municipal Court had been- amended by inserting the right name of the defendant, and that the transcript had been issued in the form in which it was through inadvertence of the clerk of the Municipal Court. By section 3220- of the Code, after a transcript of the judgment of the Municipal Court has been docketed in the "office of the county clerk, the judgment is deemed to be a judgment of the Supreme Court; and the Municipal Court having amended its docket so as to insert the real name of the defendant, the Supreme Court had jurisdiction to amend the docket so as to make it com form to the record in the Municipal Court, and from the- time the docket was so amended thé judgment would be "a lien upon the real property of the judgment debtor. As this amendment purported to have been made as of the 15th of April, 1901, before the plaintiff acquired title to the property, it was, I think, as it stood, an apparent lien upon the property, and thus a cloud upon the title. To remove that cloud it was necessary to prove the fact that the plaintiff had acquired title to the property on the 18th- of April, 1901, in good faith, without knowledge of the judgment, before the docket of the judgment was amended; and thus, although the lien of the judgment as appeared upon the record in the county clerk’s office would apparently affect the property of the plaintiff in consequence of his purchase of the property and the recording of the deed prior to the time that the docket was amended, his property was not subject to this lien; and this, I think, was sufficient to entitle the plaintiff to maintain this action to remove the apparent cloud upon his property from this docket of the judgment.

To deny the plaintiff this right to appeal to a court of equity to have .the validity of this lien determined would impose upon him the necessity of paying this judgment — a judgment for which he is not liable and which is not really a lien upon his property. Upon a sale under this execution, no owner of property could afford to run the risk for a judgment of $250 of being divested of the title to property for which he had paid upwards of $25,000; and yet if there is a sale under the execution and it should be held that the judgment was a lien, his title to the property would be gone. Upon the docket of this judgment as it stands, the judgment is a lien upon the property. The judgment having become a judgment of the Supreme Court by its docket, the Supreme Court had jurisdiction ■over it, and to entitle the plaintiff to establish that the judgment is not a lien upon the property it was necessary for him to prove that he had purchased the property prior to the time that the docket was amended and had paid a valuable consideration for it, and had received the conveyance without, no tice that the judgment was actually against his grantor.

There is no doubt of the rule that where the rights of the parties depend upon the legal construction of a written instrument, an ■action to correct the instrument or to declare it invalid, under the jurisdiction of courts of equity to remove clouds upon title, cannot be maintained ; that the court does not entertain such an action to remove a doubt which might be created in the minds of persons-dealing with the title,, provided the means of forming a correct legal judgment are patent on the face of the instrument or proceeding-by which the existence or non-existence of the right in question must be determined. (Mellen v. Mellen, 139 N. Y. 210.) To-justify the action to remove a lien as a cloud upon title to land, the; lien must be apparently valid and must exist under ■ such circumstances that it -may in the future embarrass or injure the owner or-endanger his title (Townsend v. Mayor, 77 N. Y. 542); but the record of this judgment was, I think, such a lien. The jurisdiction of a court of equity in actions of this character, however, is. not confined to the removal of an existing cloud' upon the title, but: may be invoked “ to prevent a threatened cloud as well as to-remove an existing one.” (King v, Townshend, 141 N. Y. 358; Sanders v. Village of Yonkers, 63 id. 492.) In King v. Townshend the action was brought to cancel a tax lease by the comptroller of- the city of New- York upon a sale for unpaid taxes.. The defendant in that case admitted that the lease was void; but. claimed that because-it was. void it constituted no cloud upon the-, title. This claim was based upon the. fact that the lease was ineffective to produce a right of possession or establish a title until a specified notice to redeem had been given to occupant or owner,, a-certificate of which, signed by the comptroller, must aceompanythe record of the. lease; and it was held that the lease was properly-canceled, for although it was imperfect and invalid and did not: constitute an actual cloud, it is nevertheless a decisive step towards, the creation of a cloud and a. threat and menace to create one in the-future. In- sustaining a judgment for the plaintiff the court said : It is true that, in such a case,-there must appear to be a determination to create a cloud, and the danger must be more than merely speculative or potential. * * * Its very existence is a. threat. It was not given for amusement or as an idle ceremony. It. meant and could' only mean a purpose to subvert the title and posr session of the owner. The further steps necessary to make the-result effective lay wholly in the option of the lessee.”

, The facts of this case bring it within the principle there applied*. Upon the record there is a judgment which is an apparent lien upon this property. The defendant had issued an execution upon' that judgment based upon its entry on the 15th day of April, 1901, prior to the time when the plaintiff acquired title, and threatened to sell under that execution the plaintiff’s interest in this real property. That the execution and delivery of a sheriff’s deed upon a sale under that execution would create an apparent cloud upon this title must be apparent. If the judgment was what it purported to be upon its face, namely, a judgment entered on the 15th day of April, 1901, against Aurora Maurer, the sale by the sheriff would divest the plaintiff of his title to the property; and what is here threatened is just what was threatened in King v. Townshend, and the danger is “more than mérely speculative or potential.” In Sanders v. Village of Yonkers (supra) it is said: “ A court of equity may, doubtless, entertain a suit not only to remove a cloud upon title, but also to prevent one. But in the latter case it must appear that there is a determination on the part of the defendant to create the cloud.” In Pettit v. Shepherd (5 Paige, 493) the defendant issued an execution and was proceeding to collect the amount due by a sale of the complainant’s farm after the lien of the judgment had expired by lapse of time. It was held that if “ a court of chancery would have jurisdiction to set aside the sheriff’s deed which might be given on a sale, and to order the same to be delivered up and canceled, as forming an improper cloud upon the complainant’s title to his farm, it seems to follow as a necessary consequence, that the court may interpose its aid to prevent such a shade from being cast upon the title, when the defendant evinces a, fixed determination to proceed with the sale.” And in Oakley v. Trustees of Williamsburgh (6 Paige, 262) the chancellor reversed an order denying an application for an injunction, saying: “ The assessments upon their lots for the expenses of the proceedings to alter the gradations of the streets, although they might be so far void as not to affect their legal title to the land, would of themselves be a cloud upon that title which must necessarily diminish the value if it did not entirely prevent the sale of such lands as village building lots; as a prudent man would not be likely to buy a city or village lot for the purpose of building thereon, and pay tlie full value of the lot, while a cloud like this was hanging over the title, which might thereafter subject him to litigation if not to actual loss of the property. And as this court sometimes exercises its jurisdiction for the purpose of removing á cloud from the complainant’s title to real estate, it may also, in a proper case, interpose its authority to prevent the illegal act from which such a cloud must necessarily arise.”

All of the essential facts which, by these cases, are necessary to justify this action, appear in this case. Under the judgment the defendant issued an execution and had advertised the plaintiffs property for sale; and what the sheriff now intends to sell is all the right, title and interest of the said Aurora Maurer which she had on the 15tli day of April, 1901, or at any time thereafter in and to the property of the plaintiff. This is alleged in the complaint and admitted by the answér. The defendant, therefore, proposes under the docket of the judgment which,- upon its face, is a lien upon the property, to sell under an execution on the judgment the interest that the judgment debtor had in this property on the 15th day of-April, 1901; and a sale under that' execution, followed by a sheriff’s, deed, delivered in pursuance thereof, would, upon its face, convey the title to the property, as Aurora, Maurer was the owner of that property upon the day on which this judgment against her purports to have been entered, and a sheriff’s deed of that property under that execution wuuld be a cloud upon the plaintiff’s title.

I also think that the finding of the trial court, that the plaintiff purchased the property without knowledge or notice that the judgment docketed was intended to be against said Aurora Maurer, and that he purchased the property in good faith and in ignorance of any claim on the part of the defendant to a lien thereon, is sustained by the evidence, and that the plaintiff was entitled to the judgment awarded by. the court below.

It follows that the judgment appealed from should be affirmed, with costs.

McLaughlin and Hatch, JJ., concurred; Van Beunt, P. J., and Laughlin, J., dissented.

Van Beunt, P. J. (dissenting):

I dissent. The judgment, showed upon its face that it was not a lien, and hence no cloud.

J udgment affirmed, with costs.  