Opinion
Submitted February 1, 1881
Decided March 1, 1881
Edward Jacobs for appellant.
Adrian H. Joline for respondent.
Section 28, article 2, title 10, chapter 8, part 3 of the Revised Statutes (vol. 2, p. 512), provides that any tenant of premises may be removed therefrom, if they lie in the City of New York, by any justice of the Marine Court. The statutes, in subsequent sections, prescribe the manner in which the removal may be made. There is no question in this case but that the proceedings had before Justice McADAM were formally in accordance with the statute. The defendant in them, Virginia Herring, was the tenant of the premises, and they lay in New York city. So far, it seems that the justice of the Marine Court had jurisdiction. But the 28th section ( supra), in four subdivisions, limits the general character of its first declaration, and therein designates the particular cases in which the power to remove may be exercised. The case in hand, if it meets either of those, meets the fourth. That is for the case of a person holding over and continuing in possession of real estate which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected. In the case before us there has been a sale of the premises of which Herring is in possession; the sale was by virtue of an execution; and the title under the sale has been perfected. The execution, however, was not against her. She is not, literally, the person against whom the execution was issued. If the provisions of the fourth subdivision are to be strictly applied, she is not amenable to them. There have been, however, judicial interpretations of it which have declared that it may be applied liberally. Thus it has been held that the proceedings may be had against the tenant of the person against whom the execution issued ( Birdsall v. Phillips, 17 Wend. 464.); that the conventional relation of landlord and tenant need not exist between the purchaser at the sheriff's sale and the occupant of the premises, arising from a lease or compact between them; that the purchaser takes all the rights of the landlord; that there does thereupon arise between the purchaser and the tenant the relation of landlord and tenant; that the statute does not mean a holding over by his own personal act, but that if he do it by agent, servant or tenant at will, he may equally be said to hold over; that the statute is equally applicable to the judgment debtor and all who hold under him under pretense of title acquired posterior to the judgment. In Hallenbeck v. Garner (20 Wend. 22) the authority of 17 Wend. ( supra) is recognized, and that a servant or agent, or one entering upon the premises under title derived subsequent to the lien of the judgment under which the sale has been made, is amenable to the statute. And in Spraker v. Cook ( 16 N.Y. 567) it is declared that by this statute the legislature has applied the designation of tenant to the judgment debtor in possession, and that of landlord to the purchaser of the land on execution, without discriminating between such parties and those who are properly landlords and tenants. It seems, then, that Herring, though not the person against whom the execution issued, is liable to proceedings under the statute, if she has entered upon the premises under pretense of title thereto, acquired subsequent to the lien of the judgment. And the dates furnished by the case show that she did. The debtor died in 1872, having a leasehold interest for years in the premises, not yet at an end. In December of that year executors of his will qualified and received letters testamentary, and went into possession of the premises as owners of the leasehold estate. In 1875 one Parker, a creditor, recovered a judgment againt those executors and docketed it. In March, 1876, a receiver of the estate was appointed, in proceedings by the executors for a construction of the will, and in proceedings for a partition of the leasehold estate. In May of that year, by order of the surrogate therefor, Parker issued an execution against the executors, judgment debtors in his judgment, and thereupon, in September of that year, issued an execution, which the Supreme Court ordered to be levied upon any of the assets or property of the testator in the hands of the executors, the judgment debtors. In 1877, the sheriff, by virtue of the execution, and a levy under it on the leasehold estate, sold that estate and gave a certificate to the purchaser. In 1878, at the expiration of fifteen months from the sale, the sheriff gave a deed to the purchaser, who is the same one who has taken these proceedings to remove Herring. In 1879, the receiver leased the premises to Herring, and she went into possession by authority of the lease, and under the title of the receiver. Thus it appears, that the possession of Herring is by the title of the receiver, and that his title was acquired posterior to the judgment. She is within the provisions of the statute, as interpreted by the adjudications that we have cited. The execution was not against her nor against the receiver who let to her. But it was against the executors. The receiver had no greater or other title than that of the executors; and no right to let, save what he got by acquiring their title. It was either under their title that Herring held, which was a title subject to the lien of the judgment, and swept away by a sale under execution thereon and a perfecting of the sale thereon by taking the sheriff's deed; or it was under the title of the receiver, which was a title posterior to the lien of the judgment and equally swept away. The receiver did not take strictly under the executors, but he took only their right and title; he took not as their agent or servant, but he took as representing their testator in part, and those interested in the testator's estate in part. Spraker v. Cook ( supra) shows that an exact meaning is not to be given to the terms "landlord" and "tenant," in applying the fourth subdivision of the twenty-eighth section; that the purchaser is a landlord, and that any one in possession under the title that the purchaser has acquired is a tenant, within its scope.
We perceive that the interest in real estate affected by the proceedings is a leasehold for a term of years. Such an interest was at common law personal property, but the statutes of this State have for some purposes modified its character. Estates for years are by those statutes denominated estates in lands. They are still chattels real, and are not classed as real estate in the chapter of the Revised Statutes, of "Title to Property by Descent." A judgment binds and is a charge upon the chattels real of every person against whom the judgment is rendered. We will not say, that estates for years in the hands of executors are thus bound and charged, when they have acquired them as the property of their testator, though the judgment be against the executors. For leases for years of a decedent go to his executor or administrator, as assets for distribution, and vest in him as part of the decedent's personal property. ( Despard v. Churchill, 53 N.Y. 199, and citations there made.) It may be that there is a conflict in the statutes on this subject, when it is sought to apply them all at once to such a state of facts as has arisen in this case. If there be, it is not needed that we seek to allay it now. The creditor recovered and docketed his judgment against the executors, before the appointment of a receiver. The receiver was appointed by the Supreme Court. He was not appointed on the application of creditors. His duty was to receive rents and profits and collect personal estate, and to make deposits with a trust company. He stood in the place and stead of the executors for the benefit of those in any wise interested in the estate of the testator. He was not in hostility to the judgment creditor. When the creditor had, by an order duly made by the surrogate, issued his execution to the sheriff, commanding him to collect it out of the assets and personal property of the testator in the hands of the executors at the time when the judgment was docketed, the Supreme Court then gave leave that the execution be levied and enforced upon any assets or property in the hands or under the control or possession of the receiver, or of the executors, which were of or belonging to the testator.
This order, made by the same court which had appointed the receiver, justified the levy upon this leasehold estate; and when the levy was after that made, established it as a binding charge upon that estate, as fully as the judgment could have been had it been rendered against the testator. It did more than that; in effect, it made it an execution, not only against the defendants named in the judgment, but against the receiver also. He was by the operation of the order, though not in terms, yet in substance, the person against whom the execution was issued. The levy and sale under it, and the perfecting of the sale, took place before the lease by the receiver to Herring. Thus her possession was taken under a title that was subordinate to, or extinguished by, the judgment, execution and order, sale and deed. We see no reason why the facts do not bring the case within the principle of the adjudications that we have cited. If so, the justice of the Marine Court had jurisdiction of the subject-matter, of the persons and of the case, and should not have been prohibited from exercising it.
The judgment appealed from should be reversed.
All concur.
Judgment reversed.