Lippincott v. Smith

• Decision Date: 19 June 1906
• Citation: 64 A. 141,69 N.J.E. 787
• Parties: LIPPINCOTT v. SMITH et al.
• Court: New Jersey Supreme Court

64 A. 141

69 N.J.E. 787

LIPPINCOTT

v. SMITH et al.

Court of Errors and Appeals of New Jersey.

June 19, 1906.

Appeal from Court of Chancery.

Partition by Agnes H. Lippincott against Samuel C. Smith and others. From a decree (60 Atl. 330) determining the priority of payment of judgments against the interest of Joseph A. Burrough, Daniel V. Summerill, Jr., appeals. Reversed.

Samuel H. Richards, for appellant Ephraim Tomlinson and Peter V. Voorhees, for respondent.

GUMMERE, C. J. This is a bill for partition. The lands were not susceptible of an actual division, and were therefore sold. The undivided interest of Joseph A. Burrough, one of the tenants in common, was subject to the lieu of two judgments, one held by Rachel Burrough, and the other by Daniel V. Summerill, Jr., each of whom claim to be entitled to priority of payment out of Joseph A. Burrough's share of the proceeds of sale. His share of the proceeds, being insufficient to satisfy both judgments, is held by the Court of Chancery to await the determination of this question of priority. The facts which gave rise to the controversy are as follows: Joseph A. Burrough was the son and only heir at law of Mary A. Burrough, and inherited from her the undivided interest which he held in the lands sought to be partitioned. The judgment of Rachel Burrough was recovered against Mary A. Burrough during the latter's lifetime. Execution was issued upon this judgment, but no levy was made thereunder. The judgment of Summerill was recovered against Joseph A. Burrough after the death of his mother. Upon this judgment execution was also issued, and a levy was made under it upon the interest of Joseph A. Burrough in the lands sold under the partition proceedings. The Vice Chancellor, before whom the case came on to be heard, considered that under our statutes the creditor of an heir could not, by entry of judgment and levy upon lands descended, acquire a right of payment from the ancestor's lands in priority to a judgment recovered against the ancestor and which was a lien upon the land when the heir took his estate. He therefore advised that the Rachel Burrough judgment was entitled to be first paid out of the proceeds of sale. From the decree entered in accordance with that advice, this appeal is taken.

The solution of the question which this controversy raises depends upon the true construction of the ninth section of "An act relative to sales of land under a public statute, or by virtue of any judicial proceedings." Gen. St. p. 2981, § 9. That section reads as follows: "Whereas other judgments and recognizances besides those, or some of those, by virtue whereof the sale aforesaid [i. e. the sale of land by a sheriff or other officer by virtue of a writ of execution] was made might affect the lands, tenements, hereditaments and real estate so sold, if no provision be made to remedy the same; and whereas the persons who have not taken or will not take out executions upon their judgments or recognizances ought not to hinder or prevent such as do take out executions from having the proper effect and fruits thereof—therefore he it enacted that the purchaser, his heirs and assigns, shall hold the lands, tenements, hereditaments and real estate by him or her purchased as aforesaid, free and clear of all other judgments and recognizances whatsoever, on or by virtue of which no execution has been taken out and executed on the lands, tenements, hereditaments and real estate so purchased." The learned Vice Chancellor, who advised the decree appealed from, was of opinion that this statutory provision dealt only with judgments recovered against the same person, and had no application in the case of judgments one of which was recovered against the ancestor and the other against the heir. But this construction of the statute seems to us to be too narrow. The evil which the Legislature sought to remedy is pointed out by the preamble, and that is the hindering or preventing of judgment creditors, who take out executions, from having the proper effect and fruits of their diligence, by the holders of prior judgments who refuse or neglect to enforce them by execution and sale. The statute deals with the rem—the judgment as a lien upon the land. It does not regard the party against whom it was recovered. The situation to be dealt with is the same whether the prior judgment, which the holder refuses or neglects to enforce against the land, was recovered against a present or a former owner of the land. The judgment is equally a hindrance to the diligent creditor—equally prevents him from having the proper effect and fruits of his diligence—no matter against whom it was recovered, if it be a lien upon the land he seeks to have sold. The remedy given by the statute is as broad as the mischief which it was intended to correct. The sale...