The action is partition. On October 2, 1902, and prior thereto, One James G-. French owned an undivided one-ninth of the premises in suit, and on that day conveyed them to the' respondents and the deed was recorded on the following day. A judgment of foreclosure and sale upon other lands of French was'entered August 7, 1902, and the judgment adjudged that the “ Sheriff specify the amount of such deficiency in his'report of sale, and that the, plaintiffs have execution therefor, and that the defendant James Gr. French pay the same to plaintiff.” The sale pursuant to the judgment occurred September 4,1902, and the report of sale, which, showed a deficiency of $851,03 for which French was liable, was confirmed October fourth, and the order of confirmation was entered in the clerk’s office October sixth, two days after the record of the conveyance of the premises in suit.
The appellants contend that the judgment became a lien upon all the real estate of French at the time of the entry of the foreclosure judgment and not at the time of the confirmation of the report ascertaining and determining the amount of the deficiency.
The complaint in a foreclosure action does not ask for a judgment primarily for a sum of money against the defendant, who is sought to be made chargeable personally for deficiency. The purpose Of the action is to foreclose the mortgage and incidentally and contingently possibly to obtain a personal judgment against one'or more of the defendants for whatever may remain unpaid after the sale. That relief, however, is dependent entirely upon whether the land sold nets sufficient to meet the judgment. So far as I can discover, there is no practice whereby a personal judgment for the full sum unpaid on the mortgage, including costs, is docketed against.the' defendant personally liable for the deficiency. Such a practice would be contrary to the relief asked for and to the scope of the' foreclosure action. .
*109While the foreclosure judgment is final,.in that it determines absolutely the rights of the parties, it does not assume to determine, the amount for which the defendant is liable, or that he is liable for any sum. Section 1627 of the Code of Civil Procedure provides : “ The final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mortgaged property and the application of the proceeds, pursuant to the directions contained therein.” ' v
This clearly implies, and it could not be otherwise, that personal liability does not become fixed at all unless there is a “ residue * * * remaining unsatisfied ” and which can only be ascertained “ after a sale * * * and the application of the proceeds ” as directed in the judgment.
Section 1246 of the Code of Civil Procedure prescribes the essentials to the docket of a judgment, one of which is (Subd. 3) “ the sum recovered or directed to be paid, in figures,” and no real estate is affected until the judgment has been docketed. (Code Civ. Proc. § 1250.) A judgment for a sum of money is for a certain sum, and when an execution issues it is for a definite amount. Certainty and precision in the amount of the judgment are necessary to determine the extent of the lien, both for the protection of the parties directly concerned and for every other person who may be indirectly interested.
The holder of a mortgage in a case where the mortgagor is liable personally for the payment of the mortgage debt, has two remedies at his election. He may foreclose the mortgage and sell the mortgaged premises, or obtain a money judgment against the one liable. He cannot prosecute the two actions concurrently without leave of the court. (Code Civ. Proc. § 1628.) He may, however, in order to avoid another action, recover ultimately for any deficiency there may be, as a foreclosure action contemplates a sale of the premises, but the judgment for money does not arise until the remedy he has elected to pursue becomes exhausted. If judgment were docketed for the full sum as a personal judgment against any defendant liable for its payment, the judgment creditor possibly might at' once abandon the foreclosure action with its judgment of sale and issue an execution on the money judgment. The restriction of section 1628 of the Code of Civil Procedure is as to the commencement or *110maintenance of another action during the pendency of the foreclosure or after final judgment for the plaintiff therein, not as to the pursuit of a remedy in that pending action.
The two crucial propositions I believe are well established against the contention of the appellants. First. That the judgment for deficiency did not become a lien until the amount for which French was liable had been ascertained. (Wiltsie Mort. Forecl. 741, 742; Cobb v. Thornton, 8 How. Pr. 66 ; Hanover Fire Ins. Co. v. Tomlinson, 3 Hun, 630; De Agreda v. Mantel, 1 Abb. Pr. 130.)
The rule is thus stated in Wiltsie (at p. 742): “A personal decree for the deficiency, after the application of the proceeds of the sale to pay the mortgage debt, does not have the force and effect of a judgment at law and become a lien upon the real property of the person against whom it is taken Until the excess of the mortgage debt over the proceeds of the sale has been ascertained and a subsequent judgment at law has been docketed.”
Second. The deficiency is not payable until the judgment lien is created and no execution will issue thereupon until the filing of the report of sale fixing the sum for which the judgment debtor is liable personally. (Bank of Rochester v. Emerson, 10 Paige, 115 ; Kupfer v. Frank, 30 Hun, 74; Springsteene v. Gillett, Id. 260, 264; Thomas Mort. [2d ed.] 536.)
Of course, unless the judgment was a lien subject to an execution it was not prior to the conveyance by French to the appellants.
There is no specific provision of the Code of Civil Procedure requiring the docket of the judgment in an action for the foreclosure of a mortgage. Section 1626 is authority for the direction of sale of the mortgaged premises in the final judgment which is its chief purpose. By section 1627, as already indicated, the final judgment may award payment of the residue by one liable for the payment of the debt, but there can be no docket “ in figures ” of such residue until ascertained. The only basis for holding that the docket must be upon the rendition of the-judgment of sale is that the. judgment is final. The docketing of a judgment and the lien created thereby are provided for in article 3 of title 1 of chapter 11 of the Code of Civil Procedure and that article is applicable only in a case of a money judgment. (§ 1272.) The only direction for the manner in which a judgment is to be docketed is section 1246 and *111that provides for a certain sum in order to establish a lien. The docket entry is not the judgment. Its purpose is to create the lien and is preliminary to the issuance of an execution.
The judgment of sale in an action of foreclosure is final in that it determines the rights of all the parties and adjudges a sale of the mortgaged premises. The form of the judgment, however, forecasts something else to be done. If there is a deficiency and a defendant is liable therefor, the fact of his liability has been determined but the amount with which he. is to be charged is postponed to another day awaiting another event, the sale of the premises. When the report of sale has been duly filed the clerical docketing of the judgment is to be entered pursuant to section 1246 of the Code of Civil Procedure. It then, for the first time, becomes a money judgment and, consequently, a lien upon the real estate of the judgment debtor. This mode of procedure is orderly and conforms to the practice long in vogue (Hawley v. Whalen, 64 Hun, 550) and is in harmony with the general scheme of the foreclosure practice in the light of the provisions as to the docketing of judgments for the payment of money.
We are not concerned with the question whether application to -the court for confirmation of the referee’s report of sale.is necessary. The report was not filed until after the order of the Special Term confirming the same was granted. The mode of procedure adopted was to present the report of sale to the Special Term to procure the order confirming the same and then all the motion papers with the order were filed in the county clerk’s office October sixth, two days after the recording of the deed. If the order was unnecessary the judgment would not become operative in any event as a lien until the report ascertaining the amount of the judgment still unpaid was filed. There must be something in the clerk’s office to fix the precise sum and to enable the clerk to make his docket entry.
There is no suggestion even that there was at the time of the entry of the judgment of foreclosure an actual docketing of the money judgment for any sum in “ figures ” against French, and if the plaintiff’s position is tenable there must be a judgment in form at least for a definite amount against the judgment debtor. However, I do not believe the judgment becomes operative as a money
*112judgment or is a lien upon other real estate of the judgment debtor until the deficiency has been ascertained and the docketing should then be made.
The judgment should be affirmed, with costs.
All concurred;, except Williams, J., who dissented in an opinion in which McLennan, P. J., concurred.