Opinion
Argued April 29, 1885
Decided June 9, 1885
Thomas M. Howell for appellants. Wm. H. Adams for respondent.
It is impossible to find any error in the decision which followed the findings of the trial court. The effect of a judgment at law and the right of a judgment creditor are defined by statute, and the learned counsel for the appellants shows no provision upon which his claim can stand.
First, the foreclosure: The relators' lien or right, whatever it may have been, upon the land or interest of the mortgagor or judgment debtor was subsequent to the mortgage. ( Spring v. Short, 90 N.Y. 538.) They were parties to the foreclosure, and the conveyance in pursuance of it was an entire bar against them, as well as against the mortgagor. Neither could after that have any right or interest in the equity of redemption. If the sale had produced a surplus, a different question would have been presented, and the case cited by the learned counsel for the appellants ( Fliess v. Buckley, 90 N.Y. 291) would be authority for upholding a lien upon it, provided one had previously existed upon the land.
On the other hand, if the relators, as they claim, were not proper parties to the foreclosure, it was because the assignment had transferred the title from the debtor to his assignee before the recovery of their judgment. ( Spring v. Short, supra.)
Second, the assignment: It created a trust for the benefit of creditors of the assignor, and not only in terms, but by force of the statute, vested his whole estate in law and in equity in the assignee, subject only to the execution of the trust. (1 R.S., part 2, chap. 1, art. 2, §§ 55-60.) The assignor, however, might have declared to whom the land to which the trust related should belong in the event of its termination, and subject to its execution he might have granted or devised it. (Id., § 61.) But no title or interest remained in him, and consequently there was nothing to which the lien of a judgment could attach. ( Briggs v. Palmer, 20 Barb. 392; Briggs v. Davis, 20 N.Y. 15; Leonardsville Bank v. Willard, 25 id. 574; Marvin v. Smith, 46 id. 571.) It does not follow, however, that the assignor could not discharge the trust by payment of the debts before sale by the assignee, or become entitled to the residue remaining unsold after the debts were discharged ( Wintringham v. Lafoy, 7 Cow. 735; Briggs v. Davis, supra), and the contention of the learned counsel for the appellants seems to be that there was, therefore, a reversionary interest in the assignor upon which the relators' judgment might attach. This, however, is going too far. The right which an assignor might exercise for these purposes is merely an equitable one, and in no sense impairs or diminishes the estate of the assignee, which remains perfect and exclusive until the purposes of the trust have in fact been accomplished.
Nor are we able to see that the omission of the judgment debtor or his assignee to redeem from the sale under the Powell judgment give to the relators any additional right, or to their judgment any new virtue. The debtor's right did not pass to them. Nor did the failure of his assignee to redeem make their judgment a lien upon the land, and without that they could not as judgment creditors acquire the interest of the purchaser at the sheriff's sale under the prior judgment. (2 R.S. 371, § 51.) That omission and failure had no other consequence than to let in for the purpose of redemption a creditor, who by decree, judgment, or mortgage, had a lien or charge upon the premises so sold. The relators' judgment was not of that character. The argument in their behalf has been carefully considered, but we find no reason in it, or in the cases cited by their counsel, to create a doubt as to the correctness of the judgment appealed from, nor necessity to add more to the opinion of the learned court directing it.
We think the judgment should be affirmed.
All concur.
Judgment affirmed.