Opinion
May, 1907.
Henry B. Hathaway, for plaintiffs.
Alphonse Dession (John M. Stoddard, of counsel), for defendants Charles, Alfred, Theodore and William Senior and defendant Burke.
John C. West, for defendants, children of Edward M. Senior.
Coudert Brothers (Charles B. Samuels, of counsel), for defendants Hart and Smith.
Merrill Rogers (A.H. Holbrook, of counsel), for defendant Stilwell.
Charles S. Simpkins, for defendant Simpkins.
William H. Blymer, for defendant Govin.
Jacob Fromme, for defendant Burt as receiver.
Justus W. Smith, for defendant Hollister.
After providing for the maintenance of his son Thomas, the testator gave a life estate in all his property to his widow, with remainder over to his nine children. They took a vested interest, liable, however, to be divested in the event of their predeceasing their mother. The will expressly declares that in the event of the death of a child before the termination of the life estate the issue of said deceased child shall take the parent's share. One son, Edward M. Senior, died before his mother's decease, and his interest and that of those claiming under him thereupon ceased. The rights of judgment creditors, receivers and purchasers at sheriff's sales, so far as they affected Edward M. Senior, became extinguished when he died. When his death occurred the share intended for him passed to his six children, absolutely freed from their father's liabilities; they did not take as heirs of their father, but as devisees of their grandfather, the testator. The supplementary proceedings instituted upon the Hart judgment recovered against the defendants William A. Senior and Theodore E. Senior were not void. The defects in those proceedings were not jurisdictional, and were waived by the appearance and examination of the judgment debtors and the appointment of a receiver without objection. Glover v. Gargan, 10 A.D. 527. But although the appointment of the receiver was valid, his attempted sale of the judgment debtor's real estate was ineffectual to pass title. A receiver appointed in proceedings supplemental to execution does not acquire any title to the real property of the judgment debtor, nor any power to sell or transfer such real property. His interest is simply a right to take possession of the judgment debtor's real property for the purpose of satisfying the judgment, and is subject to be terminated by a sale of the real property under execution and the delivery of a deed thereof to the purchaser; it is also subject to be terminated by expiration of the ten years during which the judgment under which the receiver is appointed is a lien upon the premises. Chadeayne v. Gwyer, 83 A.D. 403; Dawers v. Sternberger, 52 Misc. 532; Steenberge v. Low, 46 id. 285. The sheriff's deed under the Brown judgment, purporting to convey the interest of Alfred Senior in Nos. 57 and 59 Downing street, No. 134 West Forty-ninth street and the leasehold in West Houston street, was wholly ineffectual, as it rested on an execution issued seventeen years after the docketing of the judgment. Execution cannot reach real estate after it has ceased to be a lien. Baimber v. Ackerman, 63 Hun, 401; Matter of Harmon, 79 id. 226. Section 1252 of the Code of Civil Procedure is restricted to judgments "hereafter rendered," that is, after September 1, 1877. The judgment of Brown against Alfred Senior was recovered May 5, 1874. The testator never owned the Forty-ninth street property nor the Houston street leasehold. These two properties were acquired by the widow of the testator, and, while they were purchased with the money of the estate and the title taken in the name of the widow as executrix, the interest of the testator's children in these properties was never a legal estate until the death of the executrix in 1906. Lachman v. Reilly, 95 N.Y. 64. The sheriff's deed to Benjamin Stillwell conveyed all the one-ninth interest of Charles A. Senior in the properties Nos. 57 and 59 Downing street and No. 79 Carmine street. The $15,000 mortgage now covering the Downing and Forty-ninth street properties is a valid incumbrance, but as it was created for the purpose of the Forty-ninth street property the amount thereof should be satisfied out of the property which received the entire benefit of it. The right of Thomas Senior to retain the Putnam county homestead is not disputed by any of the heirs or devisees, who are the only persons having an interest therein, and his acceptance of the same will be deemed to be in satisfaction of the provision made for his support. Those who acquired title under the Stillwell judgment obtained an interest in certain designated parcels of property, but not in the entire estate; they, therefore, have no interest in the homestead property.
Ordered accordingly.