Matter of Townsend

Cullen, Ch. J. This was a proceeding for the sale of the real estate of a decedent for the payment of her debts, and the appeal is from the affirmance of an order of the surrogate which relieved the purchaser, upon a sale made *524 under a decree in the proceeding, from his purchase on the ground that the proceedings were so irregular that the title acquired by the purchaser would be doubtful. We think the proceedings were so irregular that the respondent was properly granted the relief he asked. Without referring to other objections, we are of opinion that the proceeding was defective for failing to make parties to it the judgment creditors of the heirs at law of the deceased. Doubtless, as claimed by the learned counsel for the appellant and as held by this court' in Matter of Dolan (88 N. Y. 309), it is necessary in a proceeding of this character only to comply with the requirements of the statute and make such persons parties thereto as the statute prescribes. When the Dolan case arose the proceeding was governed by the provisions of the Revised Statutes (2 R. S. ch. 6, title 4, §§ 5 and 6) which required service of .the notice of the application upon the widow, heirs and devisees of the deceased. It was held that service on no other person was requisite. The present case, however, is governed by the Code of Civil Procedure, sections 2752 to 2756. These sections require that the citation shall be issued to “husband or wife, and of all the heirs and devisees of the decedent, and also every other person claiming under them, or either of them.” The question before us is whether judgment creditors of an heir or devisee should be deemed as persons claiming under him within the meaning of the statute. We think they should. Though the lien of a judgment creditor on the real estate of his debtor is general and not specific, he has a substantial interest to protect in the proceeding. The .effect of granting the application is to destroy his hen on the real estate. In Brainard v. Cooper (10 N. Y. 356) it was held that a judgment creditor having a lien had a subsisting interest under the mortgagor such as entitled him to redeem from a defective mortgage sale. In Ray-nor v. Gordon (23 Hun, 264) it was held that a judgment creditor of a devisee was a person claiming under *525 him and entitled under the language of another section of the Revised Statutes (2 R. S. 101, § 10) to intervene and set up the Statute of Limitations in bar of the application, though at that time, as already said, it was not necessary to make him a party to the proceeding. That decision has never been overruled or questioned. Now that the statute has been changed, the same construction should be given to the term “persons claiming under them or either of them,” as was given to it in the case cited. In actions to foreclose mortgages or for the sale of property in partition judgment creditors are necessary parties. The same rule should apply in proceedings of this kind if the language of the statute permits it. In our judgment it not only permits the rule, but requires its adoption. The order appealed from should be affirmed, with costs. Haight, Werner, Willard Bartlett, Hiscocic, Chase and Collin, JJ., concur. Order affirmed.