This is a controversy between judgment creditors of one Dennis Harris, as to which is entitled to the surplus moneys in court arising from the foreclosure of a mortgage given by Harris. On the first of January, 1856, the Messrs. Foote recovered a judgment against Harris for $4,607.30, and which was regularly filed and docketed on that day. That judgment is larger than the surplus moneys *Page 334 in controversy, and if it is a valid and prior lien thereon, more than sufficient to absorb the whole amount thereof.
Bartolome Blanco claimed said surplus moneys under a judgment obtained against Harris, and which was filed and docketed on the 3d of April, 1856. The action in which the judgment was obtained was commenced by attachment under section 227 of the Code, issued on the 2d January, 1856, delivered to the sheriff on the same day, and who levied on all the estate, real and personal, of the mortgagee, Harris, on the 7th of January, 1856; and Blanco claims that his judgment relates back as a lien, by virtue of said attachment, to January 7th, 1856. Jose T. Alfonso and others also recovered a judgment against Harris, which was filed and duly docketed on the 30th day of January, 1856, for $13,610.65. The sale of the mortgaged premises took place February 5th, 1857, and the surplus moneys in the chamberlain's hands amount to $2,446.25.
The referee to whom it was referred to ascertain the priorities of the liens, reported that Foote's judgment became a lien on the mortgaged premises January 1st, 1856, and so continued till February 29th, 1856, when the judgment and docket thereof were vacated, and that said lien was not revived till October 21st, 1856, when the docket was restored. That Blanco's judgment, docketed April 3d 1856, related back to the levy of the attachment, January 7th, 1856, and became a lien from that day, and that Blanco was entitled to the fund in court as having the first lien. Upon exceptions to this report, on the part of Messrs. Foote and of Alfonso and others, the report was confirmed at Special Term, and from such order of confirmation, appeals were taken by the same parties to the General Term. The General Term affirmed the order on the appeal of Alfonso and others, and reversed it on the appeal of the Messrs. Foote, and adjudged that they were entitled to said surplus moneys by virtue of their judgment against Harris, docketed on the first day of January, 1856.
From this last mentioned order of the General Term, Blanco and Alfonso and others appeal to this court. *Page 335
The referee disallowed the claim of Messrs. Foote, to said surplus moneys, upon this state of facts. On the 29th day of February, 1856, an order was made at Special Term of the Supreme Court, setting aside and vacating the judgment in favor of Messrs. Foote against Harris, and the execution issued thereon for irregularity, and also vacating the docket of the judgment. A memorandum of this order was entered on the docket. On appeal to the General Term, this order of the Special Term was vacated and set aside, by an order of the General Term, May 8th, 1856. This order was delivered to the clerk May 12th. A memorandum of this order was entered on the docket October 21st, 1856.
Upon motion at General Term on the part of Harris, an order was made November 23d 1857, by default, that the order of May 8th, 1856, be opened, and the appeal from the order of February 29th, 1856, was ordered to stand for argument, and on the 23d of November, 1857, the General Term made an order that the order of November 23d be vacated and wholly set aside, and the motion to set aside the order of May 8th, 1856, was denied.
I am entirely satisfied with the reasons given by the General Term for the order made by that court, adjudging the surplus moneys in controversy to the claimants, the Messrs. Foote. If this judgment is the prior lien, it being more than sufficient to absorb the whole surplus moneys, it becomes wholly unnecessary to examine the antagonistic claims thereto of Blanco and Alfonso and others. It is conceded that the lien of the Foote judgment was anterior to the judgment of either of the claimants, but they contend that such lien was lost by reason of the order of February 29th, 1856, whereby that judgment was vacated. It is to be observed that whatever lien either of the claimants acquired, it was during the conceded lifetime of the Foote judgment, and subordinate to the lien of that judgment. The order of February 29th, vacating that judgment, could, during its lifetime, only give precedence to the lien of the judgment of the other claimants. They took no proceedings under those judgments, and acquired no new rights, during this *Page 336 period. They parted with nothing on the faith of this order, and when it was vacated and set aside on the 8th of May, 1856, the plaintiffs in the Foote judgment were restored to their original position and rights, and the other judgment creditors to their original rights. The setting aside the order placed all parties affected by it in their original posture, and if no new rights or equities had sprung up in the meantime, each resumed his original lien on the lands of the judgment debtor. The judgment of the Footes had been properly and legally docketed, so as to create a lien on the lands of Harris. That lien was suspended during the lifetime of the order of February 29th, and when it ceased to have any vitality or effect, by its being vacated, the lien revived, and was as if it had never been suspended. Of course, ifbona fide purchasers had, in the meantime, intervened, their rights would have been protected. But neither of the claimants to these moneys stand in any such attitude. The lien of Footes' judgment was perfect and complete at the time when the other claimants acquired their lien. In this significant particular this case differs from that of Buchan v. Sumner (2 Barb. Ch., 165). In that case the judgment had never been docketed according to law, and it was therefore correctly held, that no judgment will affect any lands, c., or have any preference as against other judgment creditors, until the record thereof has been filed and docketed. As already observed, the judgment of the Footes was legally docketed, and was a prior lien to that of the other claimants. When the order vacating that judgment was set aside, that lien was revived in all its pristine vigor, and was as effective as before that order was made, except as to rights acquired in the meantime. These claimants having acquired none, it follows that the order of the General Term, awarding the surplus moneys to the Messrs. Foote, were correct and should be affirmed with costs.
All the judges concurring,
Order affirmed. *Page 337