Hull v. Spratt

The respondent’s judgment, directed to be paid as a prior lien to the judgment recovered by the appellant out of the surplus moneys arising from the foreclosure sale, was recovered as a specific lien upon the fund. The action was brought to enforce the specific performance of a contract for the conveyance of the property, and a notice of lis pendens was properly filed in it, before the appellant recovered his judgment. And, as the property was sold *719under the foreclosure of a mortgage superior to the rights of either of these parties, the respondent recovered a judgment for the money he had paid upon his contract as a specific lien on the vendor’s interest in the fund. This was equitable and just, because, by the contract, the vendor became, in effect, a trustee of the title for the vendee. The property was equitably his, so far as the purchase-price was paid, and to that extent, a judgment recovered against the vendor did not become a lien upon it. Wilkes v. Harper, 2 Barb. Ch. 339; Matter of Howe, 1 Paige, 125.

When the appellant recovered his judgment, it was subordinate to the action then pending in the respondent’s favor. He had previously filed notice of the pendency of his action, which rendered it the duty of the appellant to take notice of the proceedings in it. Indeed, it operated as notice to the appellant, whose rights to proceed against the fund were all afterward acquired. By the judgment in the respondent’s favor, so much of the fund as was necessary for that purpose, was appropriated to its payment. And, so far as the appellant was concerned, whose judgment simply became chargeable on the interest of his debtor, it took effect from the time the notice of the pendency of the action was filed.

It was, therefore, rightly held, that the respondent’s specific lien upon the fund should be discharged before any thing could be paid to the appellant, who, at most, had but a general lien. And the judgment was evidence against the appellant of this priority, because he acquired his lien under the debtor and vendor, after the notice of the pendency of the action was filed. That was sufficient to conclude him by means of the respondent’s judgment afterward recovered in the same action. Code, § 132; Harrington v. Slade, 22 Barb. 162-166.

But, by the judgment, the respondent was only entitled to be paid the amount recovered by him as a lien upon the fund. And that was the sum of $1,114.72, with interest from April 22,1872, while the report of the referee, and the order confirming it, awarded him that amount, with interest from April 22, 1871. The order and the report should be modified so as to direct the amount to be paid, with interest from April 22,1872, and, as so modified, affirmed without costs.

Davis, P. J., and Beady, J., concurred.

Ordered accordingly.