Patrick Treacy, Plaintiff, v. Anthony Ellis and Others, Defendants; James P. Brown, Julia A. Shaw and Raphael J. Moses, Appellants; Charles E. Schaffner and Others, Respondents

Patrick Treacy, Plaintiff, v. Anthony Ellis and Others, Defendants. James P. Brown, Julia A. Shaw and Raphael J. Moses, Appellants; Charles E. Schaffner and Others, Respondents. Action for partition — the judgment therein actually'transfers the title to money on, deppsit to a judgment creditor of an owner — the Statute of Limitations does not run against his right. Where a judgment of partition and sale adjudges that the interest of a co-ténañt. is subject to the lieu of certain judgments, and directs the-referee .to pay into- ■ court the moneys arising from the-sale of such .interest, the judgment creditors do not' lose their interest in the moneys so deposited by the subsequent, expiration of the ten years during which- a judgment is a lien upon: real estate.. The judgment of partition, and sale operates to transfer to the judgment creditors, to the extent of their judgments, the moneys deposited in court, and not-simply as a substitution of a mere general lien upon such moneys for the: general lien of the judgments upon the real estate. • Appeal by James P. Brpwn arid others from certain portions of' an order 'of -the -’Supreme Court,"made at fhe Mew York Special-Term and entered in the office of 'the clerk of the county of Mew York.on the 5 th day'of October, 1899; distributing á certain fund; deposited with the chamberlain- of the city of Mew York to the; credit of this action. This action is for the partition of - real property and was: begun in¡ 1886. The appellant Brown was a party defendant.. In 1878 the Grand Central Bank of the city of New York recovered four judgments against Brown and one Foran. In this and the following year three other judgments were recovered against Brown and Foran by Reuben Ross, Stephen L."'Merchant and Abraham Steers. The latter judgment is now owned by the respondent Carpenter. JBy the judgment of partition and sale, entered in April, 1886, it was determined that Brown owned an undivided sixty-fourth interest In the property, which was subject to the lien of the judgments referred to, and said partition judgment provided that the referee pay into court the money arising from the sale of Brown’s interest. In accordance with this direction the. money was paid to the chamberlain, subject to the further order of the court. In March, 1894, the Grand Central Bank, having long ceased to transact business, petitioned for a dissolution. Notice of the application was duly given to the stockholders and, no one opposing, .an order was made dissolving the corporation and appointing a receiver. This order was entered November 28,1894. On May 1, 1895, an order was made discharging the receiver. It contained the provision “ that the said receiver may, upon request, execute and deliver satisfaction pieces or assignments of several unsatisfied judgments heretofore recovered by said bank, it appearing by the affidavit of William Burns that the same are of no value as an asset.” On May 13, 1898, the receiver assigned to the respondent Schaffner the four judgments recovered by the bank against Brown and Foran. In June, 1898, a motion was madé in behalf oFSchaffner, Merchant and Carpenter for payment of' the fund representing Brown’s interest in the property partitioned, upon which an order was made appointing a referee to hear and report the facts. Upon the coming in of his report the motion was denied, without prejudice to a renewal upon notice to those beneficially interested in the assets of the Grand Central Bank. Before the date fixed for the making of the second motion, the appellant Moses appeared and petitioned to be made a party to the proceeding, and for other relief; and on December 23, 1898, an order was made giving him leave to appear before the referee originally appointed alnd submit proof of his interest in the bank. He appeared accordingly, and submitted certain proof, which the referee reported to the court in June, 1899. Prior to this, on March 14, 1899, Moses petitioned, in the dissolution proceedings, that the order dissolving the bank and .appointing a receiver be vacated, and that the assignment by the» receiver to Schaffner of the judgments against Brown be adjudged void. On April 25, 1899,"an order was made denying the prayer off the petition — the ground taken by the court being that the petitioner was estopped from attacking the -dissolution by making himself a party to the proceeding now under review. This order was-affirmed by the Appellate Division upon the same ground in June,. 1899. A second motion by the respondents. for payment of the fund was suspended until the hearing of the application made by Moses. In July, 1899, a third motion was made, upon all the prior proceedings, which resulted in the order appealed from, distributing-the fund, after payment of a referee’s fee of $100, amo-ng Schaffner,, Merchant, Carpenter and the estate of Ross,. in proportion to the» amount of their several judgments. Benj. T. Kissam, for the appellants Brown and Shaw. Henry B. Heylman, for the appellant Moses. O. F. G. Megie, for the respondents Schaffner and Merchant. Wm. J. Leitch, for the respondents, executors of Reuben Ross, deceased. [MAJORITY — Barrett, J.:] Barrett, J.: There are two branches of the appeal: 1. Brown and Mrs. Shaw, his assignee, contend that the lien of the judgments against the former has ceased from lapse of time,, and, hence, that the respondents are not entitled to the fund deposited with the chamberlain. Concededly, however, when the» partition suit was begun in 1886, and when, in. the- same year, the decree was entered, the sale was had, and the referee, in pursuance of the-terms of that decree, paid over to the chamberlain the sum received for Brown’s interest; all of those judgments were liens thereupon. This established the right of the judgment creditors. (Caswell v. Kemp, 41 Hun, 434.) In the case cited the judgment was still a lien upon the property when the partition suit was begun, but had ceased to be such before the trial. It was held, however, that the rights of the respective parties were to be determined as of the; date when the action was commenced, and, consequently, that the; creditor had a valid claim against the interest of his debtor by virtue; of the judgment. The present case is still stronger for the judgment creditors, since their judgments remained liens upon the real: property up to the time of the sale. This being so, it is immaterial whether the date when the action was begun be taken as the time-when rights become fixed, or the date of sale, according to the rule established in foreclosure cases. (Nutt v. Cuming, 155 N. Y. 309; Elsworth v. Woolsey, 19 App. Div. 385; affd. on opinion below,. 154 N. Y. 748.) In either case the judgments here were still liens, and the creditors consequently entitled. It seems clear, upon principle as well as authority, that the subsequent lapse of time did not defeat their rights. The contention is that the proceeds of Brown’s individual share, when brought into-court, were a substitute for his interest in the land; and that, as timben of a judgment upon real property (“ except as otherwise specially prescribed by law-”) ceases after ten years (Code Civ. Proc.. § 1251), so necessarily does the ben upon, the substitute. This contention overlooks two salient considerations: First, that the substitute is not real estate, though the law may sometimes give it that attribute in determining who is entitled to it; and, second, that the-decree confers a right to the moneys in court, and not a mere general lien thereon. The money substitute is, in fact, personal property, and the statute relating to the ben of judgments upon real estate has no application. It certainly has no direct application, for it is silent with regard to any substitute for real property. And it cannot be made-applicable here by implication, or even by analogy, for the reason that an execution cannot be levied against moneys in custodialegis. Section 1252 provides that,/even after the expiration of the; ten, years, real estate may be levied upon under an execution, by-filing with the clerk of the county, a notice subscribed by the sheriff,, describing the judgment, the execution and the property levied upon. That notice must be recorded and indexed by the clerk; and the judgment binds and becomes a charge upon the right and title thus, levied upon, of the judgment debtor, from the time of recording and indexing. Rothing of this kind could be done in the case of the money substitute in the hands of the court; and it would he' a ■strange analogy which would give the judgment creditor less rights with regard to the substitute than he would have had with regard "to the realty itself. In the one case he would have the ten years ■and a further lien upon bhe recording and indexing- of the notice. In the other, he would' have the ten years, with no possibility of ■extension. He might, it is true, issue an execution against property ■•after the expiration of the ten years, but the moneys in court could mot be levied upon, nor could the notice be filed, recorded and indexed. The reason why the statute makes no provision, in this particular ■connection, with regard to- a money substitute for real estate in partition is obviously because what were deemed proper provisions were made ■ in that part of the Code which relates to partition -actions. (§§ 1561-1565). Under these provisions, a mere general lien upon the moneys paid into court is not substituted for the general lien' of the judgment upon the real estate. The creditor’s lien is the subject of adjudication in-the partition action, and that -adjudication settles his right of lien and his sequential right to the "fund, subject to the incidental questions of extent and priority. He loses his lien if the adjudication goes against him. It was held in Dunham v. Minard (4 Paige, 442) that if the master, in the partition action, reports against the claim of any person having a lien by judgment or decree upon the shares of any of the parties, the ■claimant must except to the report in due season to preserve his lien upon the purchase money. The present statute does not materially différ in this respect from that which the chancellor was then ■considering. This case was cited in Halsted v. Halsted (55 N. Y. 445), where it was distinctly held that the referee in'partition is--authorized to take proof and pass upon the question of the validity ■of an incumbrance upon an undivided share of one of the parties. .Andrews, J., there, said: “ The inquiry as to the existence and amount of the lien involved the further question as to -its validity, if the party against whose share it was claimed to exist contested it. In case the master reported against the lien claimed, exception could be taken to the report when it was presented for confirmation.” The learned judge added that “ The question of the' distribution ■of the proceeds of the sale ofi any undivided share of the premises, ■as between the owner and incumbrancers, is collateral to the main purpose of the action. The court, having possession of the fund Lor distribution, directs proof to be taken upon the reference as to the liens, upon notice to the parties interested, and, upon the coining :in of the report, adjudges how the distribution shall be made.” As Brown was a party to the partition action, it is clear that the ■decree was an adjudication binding upon him; that the judgment -creditors had valid liens upon his share by virtue of their judgments. The statutory lien thus ripened, into an adjudicated right; "that is, an adjudicated right to the money" substitute for the realty, ¡and, consequently, the creditors’ application for payment was not to ■enforce a general, unadjudicated lien, but-simply to enforce the judgment in their favor. This conclusion is in entire accord with the provisions of sections 1563, 1564 and 1565 of the Code of Civil Procedure. Under the first section, where it appears from the referee’s report that there is ¡an existing lien upon the share of a party, the interlocutory judgment must direct payment into court of the portion of the money •arising from the gale of the share. Under section 1564 provision is made for ascertaining the whole amount of the unsatisfied liens. Section 1565 then provides that when the whole amount of the unsatisfied liens has been ascertained, the court must “ order the portion of the money so paid into court to be distributed among the creditors diaving the liens according to the priority of each of them.” These ¡sections clearly indicate that the procedure provided for, as far as the existing lien adjudicated by the decree is concerned, is not an ■'Original application to declare and enforce such lien, but an application at the foot of the decree to enforce the judgment creditor’s .adjudicated right with respect thereto. It is quite clear, therefore, that these judgment creditors have had a right throughout to the satisfaction of their adjudicated liens. 'The money in court was as much theirs under the partition decree •••as though it had been deposited in express terms “ to their use.” The referee has found that Brown was not served with the sum-.mons in the actions brought by Ross and Merchant; but this cannot aid him. He was, as we have seen, a party to the partition .action, and the decree therein that these judgments were liens is Binding upon him and his assignee. 2., We think that the appeal of Moses must also fail. The order-authorizing the assignment, by .the receiver of the Grand Central Bank, of the judgments recovered by it was duly made in the dissolution proceedings, and was prima faoie binding upon Moses and-all the other stockholders of the bank. Schaffner’s title was, therefore, ' presumptively good, and it could only be assailed by a direct, proceeding to which he was a party. Moses applied in the dissolution proceeding to set aside the order which authorized the assignment, and also to set aside the assignment itself. .His application,., however, was denied. He coupled it with an application to set aside: the dissolution proceeding; and his entire application was denied*. The opinion of the court (here and below) was confined to the questions raised with regard to the dissolution proceeding proper, bufe the. order denied every part of the application, including, of course,, that which questioned the receivers order and the assignment to« Scliaffner. We would be glad to find some way of relieving the! the stockholders of the bank, for although the referee found that the judgments were assigned to Schaffner for value, we have very grave-doubts of the correctness of that finding. It is fair to Schaffner,* however, to say that he lias never been called upon to answer in any direct proceeding to set aside his assignment, and the receiver’s-order under which it was made. The affidavits of Moses and of the-, receiver, read in opposition to the final application here for payment, contained statements which questioned the. propriety of the. receiver’s order and. the consideration for the assignment. But, of course, such affidavits could not then be considered or treated as in the nature of an independent application to set aside the receiver’s-order, and the assignment thereunder to,Scliaffner. The fact is that. the independent application was made^ as already indicated, and. denied; and we see no way now of reopening the matter. Upon the record before us, it is clear that the order, so far as it is. appealed from by Moses, Brown and Shaw, was correct; and it. should be affirmed, with ten dollars . costs and disbursements of the., appeal. Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ... concurred. , Order affirmed, with ten dollars costs and disbursements.