This case involves the priority of several judgment creditors, as between themselves, in relation to a fund arising upon the sale of real estate in the city of New York under the foreclosure of a mortgage.
The order in which the several judgments were docketed is as follows, viz.: That of Theodore C. and David D. Foote, January 1, 1856; that of Bartolome Blanco, April 3, 1856, in an action commenced by attachment, issued pursuant to the Code, January 2, and levied on the land of the debtor January 7, 1856. That of Jose T. Alfonzo and others January 30, 1856.
The judgment in favor of Blanco is claimed to have priority from January 7, by relation to the time of levying the attachment. On the 29th of February, 1856, an order of the Supreme Court, where all the said judgments were recovered, was made setting aside the judgment of Messrs. Foote for irregularity, and an entry was made upon the docket of that date, "vacated by order of the court."
This order was reversed or vacated at the General Term, by default, on the 8th of May, 1856, but no entry thereof was made on the docket till the 21st of October, 1856, when the clerk entered thereon as follows, viz.: "Order vacating *Page 331 judgment set aside by General Term." A motion was afterwards made at General Term to open this order taken by default, but the motion was denied.
The foreclosure suit was commenced in June, 1856, and the judgment of Messrs. Foote appearing on the docket to be vacated, those gentlemen were not made parties to the action, but the plaintiffs in the two subsequent judgments were joined as defendants therein. The premises were sold under the judgment of foreclosure in February, 1857, and the surplus proceeds were deposited with the chamberlain to the credit of this action.
Upon a reference to ascertain the priorities among the judgment creditors, the referee reported that the judgment of Mr. Blanco took effect as a lien, by relation, on the 7th of January, 1856, when the attachment was levied, and that this judgment was the first lien and entitled to the surplus money.
The report was confirmed by the Special Term of the Supreme Court, but on appeal it was reversed by the General Term, where it was held that Messrs. Foote were entitled to the priority, and the fund was directed to be paid to them.
The case now comes up on appeal from the last order.
The judgment of Messrs. Foote was regularly docketed so as to constitute the first lien on the lands of the debtor, and so continued, unquestionably, till the entry on the docket of the order of February 29th, 1856.
The judgment was then held to be irregular and vacated. But that order was erroneous, and was subsequently reversed. As tobona fide purchasers, and those standing in a similar relation, and as to all transactions and proceedings influenced or affected injuriously by the vacation of the judgment, it must be held operative and binding, notwithstanding its erroneous character, provided the transactions were entered into while the judgment appeared from the docket to be vacated, except, perhaps, such persons as knew of the order of May 8th, 1856, reversing the former order of Feb. 29th.
Thus the foreclosure action, having been commenced during that period, was not defective as to parties, although the *Page 332 Messrs. Foote were not joined as defendants. The purchaser under the judgment of foreclosure, acquired a perfect title to the premises, not affected by the judgment. The term bona fide, as applied to purchasers, mortgagees, and incumbrancers, includes only such persons as have parted with some value, or who will sustain some injury by reason of the entry vacating the judgment on the docket, and its subsequent restoration as a lien.
The appellants have parted with nothing in consequence of the judgment of Messrs. Foote not appearing on the docket as a lien. Its restoration leaves the appellants in the same plight that they were in before the entry of the erroneous order vacating the judgment, which had obtained a prior lien. They can claim no vested right to have a prior valid judgment and lien erroneously continued, to be vacated on the docket.
The statutes, as to the docketing and lien of judgments, does not affect the question. Everything has been done in that respect, on behalf of Messrs. Foote, which the statutes required. The present case differs in this particular, from that relied on so much by the learned counsel for the appellants, as controlling in their favor.
The case of Buchan v. Sumner (2 Barb. Ch., 165), turned upon the fact that the judgment had not been docketed so as to create a lien. The statute requires an alphabetical docket, and the judgment against Sumner had not been docketed against that name, but under the letter P, against Palmer.
The correctness of the decision is not free from doubt, upon principle, as against subsequent liens which did not stand in thebona fide relation of having parted with a consideration, or sustained an injury to arise from the error in the docketing.
The case of Sears v. Burnham, decided in this court, and reported in 17 N.Y., 445, on the other hand, holds that the statute relating to the docketing of judgments is directory; that an error which is amendable by the court in which the judgment was rendered, will not vitiate the lien of such judgment *Page 333 as against persons who have not been actually misled and prejudiced thereby. This was so held in respect to the proceeds of a sale, under a surrogate's order, of real estate subject to the lien of a judgment, the year of the rendition whereof was erroneously stated in the transcript.
In Hart v. Reynolds (note 1, Chichester v. Cande), 3 Cow., 39, 42, a docket was amended by correcting the name of the defendant as against subsequent judgment creditors, saving the rights of bona fide purchasers and mortgagees.
It appears to be free from doubt, to my mind, that the court can correct their own error in vacating a judgment which had been regularly entered and docketed, so as to create a lien upon land, as against subsequent judgment creditors who have not been misled or prejudiced thereby, without the aid of the authorities which have been cited, holding the power of the court to correct and amend an erroneous docketing of a judgment.
The judgment of Messrs. Foote was always regular, and needed no amending. By an error of the court below its operation was suspended. That error, when discovered, must be held to be inoperative as against subsequent judgment creditors who have not been misled or prejudiced thereby.
The order appealed from should be affirmed with costs, to be paid by the appellants.
The judgment of Messrs. Foote being large enough to absorb all of the fund, it is not necessary to examine the question raised by Messrs. Alfonso and others respecting the relation of the judgment of Mr. Blanco to the time of the levy of the attachment.
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