
    Baker, executrix, vs. Kingsland.
    1843. October 17.
    The copy of the docket of a judgment is not legal evidence to prove the existence of such judgment, except in special cases provided for by statute; but the record of the judgment, or a sworn or exemplified copy thereof, must be produced.
    Previous to the act of April, 1843, which made a judgment recovered against the personal representatives of the decedent, upon a trial on the merits, prima facie evidence of the existence of the debt, before the surrogate, upon an application for an order to sell or mortgage the real estate for the payment of debts, such a judgment was no evidence whatever of the existence of the debt, as against the real estate of the decedent in the hands of his heirs or devisees.
    And even since the statute of 1843, the record of the judgment against the personal representatives of the decedent, or an authenticated copy thereof, must be produced before the surrogate, in order that he may see, by the inspection thereof, that the existence of the debt of the decedent was put in issue by the pleadings, and was passed upon by the jury, so as to constitute a trial of the case upon the merits, within the intent and meaning of the statute.
    Before a surrogate is authorized to make an order, for the sale or mortgaging of the estate of the decedent, for the payment of debts, he must be satisfied by legal proof that the debts, for the payment of which the application is made, are justly due and owing, as against the owners of such real estate.
    This was an appeal from a decision of the surrogate of New-York, directing that the real estate of. W. S. Baker deceased should be mortgaged for the payment of his debts; and that his executor and executrix should give security, according to the statute, on or before the 24th of February, 1843, or in case of their neglect, that a disinterested freeholder be appointed to discharge the duty. The proceedings were instituted by the respondent Kingsland, who claimed to be a creditor of the decedent. The indebtedness was denied by the appellants. And the only evidence which Kingsland produced before the surrogate, to prove the existence of his debt, was a copy, from the supreme court clerk’s office, of the docket of a judgment against the executor and executrix of the decedent. The appellants insisted, before "the surrogate, that if any such judgment had been entered, it was irregular, and in violation of an order of the supreme court, which directed all proceedings in the suit against the executor and executrix to be stayed. The appellants also insisted, before the surrogate, that the respondent was bound to establish the debt, irrespective of any judgment he might have obtained against the personal representatives of the decedent.
    The respondent neglected to answer the petition of appeal, after it had been served upon the solicitor, who had appeared for him before the surrogate, with a notice of the order to answer the same, as directed by the 118th rule of the court of chancery. And an order was thereupon entered that the appeal be heard ex parte, as against the respondent.
    
      S. F. Clarkson, for the appellants.
   The Chancellor.

If the judgment against the personal representatives of the decedent had been even prima facie proof of the original indebtedness, the copy of the docket of the judgment, in the supreme court, was not legal evidence that any such judgment had been recovered. Since the act of 1840 took effect, no docket of a judgment subsequently recovered in the supreme court, is valid for any purpose, unless it is entered in the county clerk’s office. And the copy of the docket never was legal evidence to prove the existence of a judgment, except in some special cases provided for by statute. The record of the judgment, or a sworn or exemplified copy thereof, must be produced. Even since the act of April last, (Laws of 1843, p. 228,) which make a judgment recovered against the personal representatives of the decedent, upon a trial on the merits, prima facie evidence of the debt, before the surrogate, upon an application for an order to sell or mortgage the real estate for the payment of debts, the record of the judgment, or an exemplified or sworn copy thereof, must be produced; in order that the surrogate, from an inspection thereof, may see that the existence of the debt was put in issue by the pleadings, and was passed upon by the jury, so as to constitute a trial of the cause upon the merits, within the meaning of the statute.

The appellant’s counsel is also right in supposing that, as the law stood when this case was before the surrogate, a judgment against the executors was no evidence whatever to establish the existence of the debt, for the purposes of the application which was then pending. The object of the proceeding is to establish a debt, for the purpose of divesting the heirs or devisees of "the decedent of their interest in his real estate, by a sale. Independent of the express provision of the act of 1837, (Laws of 1837, p. 536, § 72,) that upon such an application the debt is to be established in the. same manner as if the judgment against the executor or administrator had not been recovered, it was previously well settled that as there was no privity between the personal representatives of the decedent, and his heirs or devisees, in respect to his real estate. Neither an admission of the former, on oath, nor the recovery of a judgment against them, was therefore admissible as evdence of a debt due from the decedent, as against the owners of the real estate either by descent or devise. (See Mason's devisees v. Peters' ex'rs, 1 Munf. Rep. 437 ; and Osgood v. The Manhattan Company, 3 Cowen's Rep. 612.) And before the surrogate is authorized to make any order for the mortgaging, leasing or sale of the real property of the decedent, he must be satisfied, by legal proof, that the debts, for the purpose of satisfying which the application is made, are justly due and owing from the testator, or intestate, as against the owners of the real estate.

The order appealed from was therefore erroneous, and must be reversed with costs. And the respondent’s application to sell or mortgage the real estate must be dismissed; but without prejudice to his right to institute new proceedings for that purpose, upon due proof of his debt, according to the provisions of the law now in force.  