Full text
Shepard v. O'Neil and others
Hand, J. I believe it is well settled, that by a sale of land on a judgment, the lien of the judgment and the right to redeem are gone. (2 Wend. 298. 4 Cowen, 136. 5 Hill, 228. 1 Denio, 633. 1 Hill, 110. 2 Denio, 344. 10 Paige, 249. 7 Cowen, 21. 1 Barb.
S. C. R. 388.) And if the statute giving power to dispose of the surplus money on a mortgage sale, confined the distribution to liens “by judgment or decree,” in the language of the 93d rule, I should not hesitate to declare against the claims of Bulger and Randal, however strong their equity.
But the statute is, that the surplus money “ shall be brought into court for the use of the defendant or of the person who may be entitled thereto, subject to the order of the court.” (2 R. S. 192, § 159.) And, as the sales under the judgments of Bulger and Randal would, in time, unless the land had been redeemed, have cut off the Boyd judgment, even if the owners of those judgments had no legal liens, Bulger and Randal would probably have been entitled to relief as having equitable liens, unless barred by some positive rule of law.
(Buchan v. Sumner, 2 Barb. Ch. Rep. 194.) But they have liens on the land, although their judgments are liens no longer. Such was the view of Chancellor Walworth in Snyder v. Stafford, (11 Paige, 77.) That case, I think, disposes of the case in hand. It was there held, that after a sale upon a judgment, the purchaser had a specific lien, and was therefore entitled to the surplus money arising from a sale upon the foreclosure of a prior mortgage.
It had before been decided that the purchaser of real estate at a sheriff’s sale, before obtaining his deed, had a lien. (Bissel v. Payne, 20 John. 3. Evertson v. Sawyer, 2 Wend. 510. And see Schermerhorn v. Merrill, 1 Barb. S. C. R. 518, and cases there cited.) 127 An order must be entered confirming the report of the referee, directing that the surplus money be paid accordingly.
But as the question is somewhat new, and I believe the exceptions were taken before the case of Snyder v. Stafford was published, I shall not give costs on this motion to either party.