HIRAM P. BENTON, App'lt, v. EDWARD W. HATCH, Resp't.'

(Court of Appeals, Second Division, Filed October 14, 1890.)

1. JUDGMENTS-REDEMPTION FROM EXECUTION SALE BY SENIOR JUDGMENT

CREDITOR.

The provisions of the Code of Civil Procedure have not changed the substance of the provisions of the Revised Statutes in regard to the redemption from sale under execution.

2. SAME.

Where a senior judgment creditor three times redeemed from sales under junior judgments properties, each of which was worth more than the sum it sold for and the amount of such senior judgment, the latter is paid and satisfied, and a subsequent purchaser of premises sold under an execution issued upon such senior judgment takes no title, thereto.

APPEAL from judgment of the supreme court, general term, fifth department, reversing judgment for plaintiff entered on the report of referee.

Dolson & Orcutt, for app'lt; Myron H. Peck and Chas. E. Forsyth, for resp't.

POTTER, J.-The action is ejectment. The plaintiff bases his right to recover the premises described in the complaint upon a title derived from the sale of the premises under an execution issued upon a judgment recovered by George S. Jones against George W. Stevens, on the 9th day of February, 1875, for the sum of $404.13, and which judgment was the first lien upon the lands and premises of said Stevens. On the 11th of the same month judgments were also recovered against the said Stevens, as follows, viz.: by the Cuba National Bank for the sum of $1,376.80; by Colerich for $374.61; by Mills for $3,145.17, and by the Bank of Angelica for $529.22. Stevens, at that time, owned several tracts of land in the county of Allegany.

The Cuba Bank issued an execution on its judgment, and caused to be sold under it the premises of Stevens, known as the hotel lot, for the sum of $652.50.

In due time and manner Jones, the senior judgment creditor, redeemed the premises so sold, paying the amount of the bid with interest thereon, and afterwards executed a deed of said premises to the judgment debtor Stevens for the sum of $800. Executions were issued upon the other judgments above named, and the premises of said Stevens, known as Spaulding mill property, were sold thereunder for the sum of $460, and the same were redeemed by Jones under his senior judgment. Under an execution issued upon the Cuba Bank judgment, the premises known as the Furnace lot was sold for $600, and the same was redeemed by said Jones under his senior judgment.

Upon executions issued upon the three last named judgments there was also sold 360 acres of lands of said Stevens, and the said Jones, under his senior judgment, also redeemed the lands so sold. Some five years after these sales and redemptions, the said Jones applied for and obtained leave to issue execution upon affi'Affirming 6 N. Y. State Rep., 203.

davit that the whole amount thereof was due and unpaid, and upon the stipulation of said Stevens that execution might be issued upon the Jones judgment, and that the whole amount thereof, with interest, was due thereon. The premises in question were sold under the last named execution and bid off by the plaintiff for fifty dollars, and subsequently the sheriff executed a deed accordingly to the plaintiff. The plaintiff bases his title upon this deed.

The answer of the defendant was a denial of each and every allegation of the complaint and affirmatively set up adverse pos

session.

The rights of the parties are to be determined under the Revised and other statutes in force when these proceedings were had and before the enactment of the Code of Civil Procedure, which also contains provisions in relation to the redemption of lands sold under execution.

The object of the statutes upon the subject of redemptions is that the property of the debtor shall be made available to its utmost extent in paying his debts.

The proceedings for that purpose are statutory and must be followed. The scheme of the statute is that for one year after the sale of lands under execution is made, the judgment debtor, his grantee, devisee or heir, may redeem the lands sold. After the expiration of a year from the sale and within the succeeding three months, any judgment creditor, whether senior or junior to the judgment on which the sale was made, may redeem and so acquire the right of the purchaser at the sale. R. S., § 50, 371, 2d vol.; People v. Fleming, 4 Denio, 137.

The question is what effect if any was produced upon the senior judgment of Jones by his redemption thereunder from the sale under the junior judgment of the Cuba Bank judgment. The appellant contends that it had no effect upon it. The respondent contends that it paid it in legal effect. It will not be questioned that the purchaser at the sale under the Cuba Bank (junior) judgment bought it subject to the lien of the Jones (senior) judgment, and that the Jones judgment being senior was not by such sale at all affected. After such sale, Jones had one of two courses he might pursue. He could sell the lands bid off under the Cuba Bank sale or he could redeem the lands from the purchaser at that sale. If he sold the lands under his (senior) judg ment, and he himself bid them off, his judgment would be paid to the amount of the bid and if he bid them off at a sum exceeding his judgment, he would have to pay the excess in cash. If the lands were bid off by another than Jones, the latter would be entitled to receive out of the bid the amount due upon his judg ment and the purchaser at the Cuba Bank sale would be entitled to any surplus beyond paying the Jones judgment. But Jones chose to redeem rather than to sell under his judgment, and so he took the position occupied by the purchaser under the Cuba judg ment sale. That position, as we have seen, was that of purchaser and owner subject to the Jones judgment. In other words, Jones had become the owner of the land by purchase from the Cuba

Bank purchaser subject to the senior judgment owned by himself. The purchaser at the Cuba Bank sale got back by Jones' redemption the sum that he paid for the land subject to the Jones judg ment and which he would have to pay to acquire Jones' position. Jones should pay or credit the same if he would take the place of the Cuba Bank purchaser.

The position of Jones is that he has become, by means of the redemption, owner of the lands at a cost of the sum he paid to redeem and the amount of his own judgment. No other can take his place or become the owner of the property without paying Jones the amount the property has cost him, viz.: the amount which he paid to redeem it from Cuba Bank judgment sale and the amount of his own judgment. Sub. 2 of 855 provides, "if the judgment or decree by virtue of which the first creditor acquired the title of the original purchaser be prior to the judg ment or decree of such second creditor, then such second creditor shall also pay to such first creditor the amount due on his judg ment or decree."

The provisions of the Code of Civil Procedure have not changed the substance of the provisions of the Revised Statutes.

The new sections added to, and the modifications made in the provisions of the Revised Statutes under which these sales and redemptions were had, by the Code of Civil Procedure, tend to confirm the reasoning and views here presented. Under the provisions of the Code, the redeeming creditor is required to make and file a certificate showing the extent to which his judgment was paid by using it to effect a redemption from a sale under execution.

By § 1463, the certificate must be acknowledged or proved and certified in like manner as a deed to be recorded in the county; must describe the judgment under which he redeems and specify the sum due thereon, and must state that the redemption satisfies the judgment in full or to a specified amount, and the same must be filed in the office of the county clerk.

This is a very plain legislative construction of the provisions of the Revised Statutes under which these proceedings were had, and giving rise to the question involved in this case. The necessary implication from this section is, that some sum must be paid upon a senior judgment which is used in redeeming from a sale under a junior judgment. The amount which would ordinarily be applied upon the senior judgment in redeeming from a sale under a junior judgment, would be the value of the property over and above the sum bid upon the junior judgment, and subject to which the purchaser bid off the property.

In this case it appears that Jones, the senior judgment creditor, had three times redeemed from sales under junior judgments of properties each of which was worth more than the sum it sold for and the amount of the Jones judgment; and notwithstanding these facts nothing, according to the appellant's contention, had yet been paid upon or was applicable to the Jones judgment and he was at liberty to issue execution upon it and sell other property of the judgment debtor to satisfy the whole of his judgment and the interest thereon.

If the purchasers at the several sales under the judgments junior to the Jones judgment purchased the lands with the same expectation that the purchaser under the Cuba Bank judgment did, viz., subject to the lien of the Jones judgment, it is manifest that the amount of the Jones judgment was virtually taken out of the amount of the bids of the last three sales and the creditors of Stevens lost those amounts out of their judgments, and if the appellant's contention is correct, then the creditors of Stevens lost four times the amount of the Jones judgment and the Jones judg ment was not paid or affected in any way whatever but was left to be enforced by a sale of other property of the judgment debtor. This, it seems to me, is contrary to the statute under consideration and also contrary to the equities recognized and enforced by the courts in analogous cases.

My conclusion is that the Jones judgment was paid or satisfied and the plaintiff took no title by virtue of the sale under that judgment. Craft v. Merrill, 14 N. Y., 456; Frost v. Yonkers Sav. Bk., 70 id., 553-560; Wood v. Colvin, 2 Hill, 566.

The evidence offered to prove that the property sold was more than the Jones judgment and the sum bid on each sale should have been received.

There is no question that the defense of want of title in the plaintiff in an action of ejectment is admissible under an answer denying the complaint. Schwarz v. Oppold, 74 N. Y., 307; Creque v. Sears, 17 Hun, 123.

The order appealed from should be affirmed and judgment absolute given for defendant, with costs.

All concur, except BRADLEY and HAIGHT, JJ., not sitting.

HANNAH S. BRICK, App'lt, v. ROBERT CAMPBELL, Resp't.'

(Court of Appeals, Second Division, Filed October 14, 1890.)

1. INSURANCE (LIFE)-ASSIGNMENT BY WIFE OF POLICY ON HUSBAND'S LIFE. A married woman is capable of assigning a policy of insurance issued upon the life of her husband for her benefit only in those cases and to the precise extent which the acts of the legislature have expressly enabled her to assign, and a married woman, having a son living, was not capable of assigning a policy issued upon the life of her husband for her benefit until the enabling act of 1879, ch. 248.

At the same time that plaintiff assigned policies on her husband's life to defendant, she covenanted that the assignments were valid and sufficient, and that whenever required she would, in order to carry out the assignment, do any other act necessary for that purpose. Held, that plaintiff was not estopped by such covenants from bringing an action to compel the reassignment of said policies to her.

3. SAME LIMITATION OF ACTION.

The wife's right to avoid the assignments and reclaim the policies will not be barred, in the absence of any act recognizing the assignments or declaration admitting the validity of the assignments, within the period of the statute of limitations.

'Reversing 8 N. Y. State Rep., 98.

APPEAL from judgment of the New York superior court, general term, reversing judgment in favor of plaintiff.

Jacob F. Miller, for app'lt; George W. Van Slyck, for resp't.

POTTER, J.-The action was brought by the plaintiff, the wife of R. A. Brick and still living when the action was brought, and was tried to compel the reassignment to her of five policies of insurance issued upon the life of her husband for her benefit, and which had been assigned by her (her husband joining in the instrument of assignment) to the defendant, for the purpose of securing and paying liabilities of the plaintiff's husband to the defendant. The grounds for such reassignment, as set forth in the complaint, are that the liabilities had been satisfied, and that the plaintiff had no right or power to transfer said policies.

The findings of the trial court that all the liabilities had not been satisfied, upon the evidence introduced upon that subject, disposes of that ground of relief, and leaves for our consideration upon this appeal the single question, whether the plaintiff was, at the time of the commencement of the action, entitled to a reassignment of the policies upon the ground that she was not bound or concluded by the assignments for want of power to assign the policies. That question, together with the obligation of covenants of plaintiff in and accompanying the instruments of assignment, to the effect that the assignments are valid and sufficient, and further, that whenever required the plaintiff would, in order to carry out the design of the assignment, do any other act necessary for that purpose, is presented upon this appeal.

The policies in question are set forth in the complaint. They were issued in July and August in the year 1872, and were assigned to the defendant on or about the first of June, 1877. Prior to that time, and until January, 1882, the plaintiff and her husband had a son living. While there were some differences in the terms of the policies in respect to payment of the sums insured, and some of them were for the life of the husband of the plaintiff or for a specified period of life, they all provided (save one, which was clearly a clerical error in the draftsman, and not affecting the character of the insurance), that the sum insured should be paid to the plaintiff, if living, and were policies which have been held by the decisions of the court, in respect to various persons to whom the sum insured is made payable in case of the death of the principal beneficiary before the death of the party whose life is insured, to be policies for the benefit of the wife and her children.

The power of a married woman to insure the life of her husband for her or her children's benefit was conferred by the act of 1840, chap. 80. It simply enabled her to effect such insurance, and nothing further. It did not enable her to assign the policy of insurance, and, beyond procuring the policy, she was still as incapable of doing anything in respect to the policy as before that act. This court, in Eadie v. Slimmon, 26 N. Y., 1-17, so construed the act of 1840, and held "a policy of insurance to a marN. Y. STATE REP., VOL. XXXIII.

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