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John Carter Brown, Appellant, v. Asher P. Nichols, Administrator, &C., of Albert D. Patchin, Deceased, Impleaded With Others, Respondent
Opinions in this case
- Majority — Earl
- Dissent — Ingalls
- Dissent — Grover
Earl, Ch. J. 1. Aside from .the effect the Eevised Statutes may have upon the subject, it will not be questioned that the lien the judgment creditor gets by virtue of the commencement of his equitable suit would survive the death of the debtor. (Storm v. Waddell, 2 Sand. Chan., 494.) The property then passes to the personal representatives charged with this lien.
The assets are subject to this lien, and the debts of the debtor are to be paid out of them after this lien, like any other legal lien, has been first satisfied. It seems to me that the provisions of the Revised Statutes (2 R. S., 88, § 27), as to the order in which debts of a deceased debtor are to be paid, have nothing whatever to do with this question.
This provision does not define what are assets, nor how liens upon the assets are to be discharged, but it directs the order in which the net assets, that is, the property of the debtor remaining* after liens have been discharged, shall be applied in payment of his debts. 2. I think the judgment, upon which this action is based, is a valid one.
Mr. Haven, a responsible attorney-appeared for A. D. Patchin, the deceased, and in such a case, I think it ought to be regarded as the settled law of this State, that the judgment may stand, and the party must seek his remedy against the attorney,,who without any authority has *31 appeared for Mm, unless there is some good- reason for not doing it, I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in, where the rights and equities of all parties can be best protected.
This rule is based not entirely upon the law of agency, but upon reasons of policy and justice which are discussed in the case of Denton v. Noyes (6 John., 296), and by Judge Woodruff, in Hamilton v. Wright (37 N. Y., 502). I think the judgment of the General Term should be reversed, and that the costs of both parties upon the appeal to the General Term and to this court, should be paid out of the funds in the hands of the defendant.