In re Townsend

• Decision Date: 22 December 1911
• Citation: 96 N.E. 1105,203 N.Y. 522
• Parties: In re TOWNSEND.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 522

96 N.E. 1105

In re TOWNSEND.

Court of Appeals of New York.

Dec. 22, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Application by Robert Townsend, administrator of Maria F. Townsend, deceased, for leave to sell land to pay debts. From an order of the Appellate Division (144 App. Div. 912,128 N. Y. Supp. 1148) affirming a decree of a surrogate's court, relieving the purchaser from his bid, an appeal was taken. Affirmed.

Calvin D. Van Name, for appellant.

A. G. De Riesthal, for respondent.

CULLEN, C. 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 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. c. 6, tit. 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, §§ 2752 to 2756. These sections require that the citation shall be issued to ‘husband or wife, and all of 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 lien on the real estate. I...