The judgment so far as appealed from should be amended in accordance with this opinion, with costs of this appeal to the appellants.
The questions involved in this appeal relate to the alleged lien of a judgment upon a share of the proceeds of a sale of real property. The facts as found by the referee relating to this issue are as follows James' Gr. French, prior to October 2, 1902, was the owner in fee of one-ninth of the premises sold. On that day he conveyed such interest to his wife Elizabeth and Elizabeth F. Smith, the respondents. The deed was recorded October 3, 1902.
George O. and John A. Helfert, the appellants herein, held a mortgage made by James G. French upon property other than that conveyed to respondents by him. An action to foreclose that mortgage was commenced and resulted in the usual foreclosure judgment docketed August Y, 1902, wherein among other things it was 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 G. French pay the same to plaintiff.*” The sale was made by the sheriff September 4,1902, and the sheriff made his report thereof, wherein he stated, among other things, “ and I hereby further certify and report, that after such sale herein, the deficiency- * * * is $851.03, with interest from September 4th, 1902.” This report was, on notice, confirmed at Special Term October 4,1902, and the papers "were filed and the order entered October 6, 1902. The language of the order was: “ Ordered and adjudged that said report of sale be and hereby is confirmed; that the plaintiffs, George C. Helfert and John A. Helfert, have judgment against-the defendant James G. French, for the sum of
*113$851.03 with interest thereon from September 4th, 1902, the amount of the deficiency specified in said report, and have execution therefor.”
It will be observed that after the making of the report of sale as to the amount of the deficiency, and two days before its confirmation, the deed was given by James Gr. French to his wife and Mrs. Smith, and the question is whether by such conveyance the lien for the deficiency was avoided, or whether such lien had attached, and the deed was subject thereto. The referee and the trial court held the lien was avoided, did not attach, and that the respondents were entitled to the whole proceeds of the one-ninth of the property, and the appellants were not entitled to be paid the amount of their deficiency. There has grown up a practice of entering a deficiency judgment, after the report of sale specifying the deficiency in mortgage cases, and the order confirming the report of sale here provided for such a judgment. The statute, however, provides for no such judgment. Subdivision 1 of section 1627 of the dode of Civil Procedure reads as follows: “ Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the action, and if he has appeared, or has been personally served with the summons, 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.”
There is but one judgment provided for in foreclosure cases, and that is the final judgment, and that must award payment of the deficiency. (Morris v. Morange, 38 N. Y. 172; Wager v. Link, 134 id. 122,128.)
There is no authority for the entry of any subsequent, so-called deficiency judgment. The report of sale and confirmation thereof merely established the amount of the deficiency. The judgment awarding it is the judgment which directs the sale, the application of the proceeds thereof and the ascertainment of the amount of the deficiency. The only difficulty in holding the judgment a lien upon the property in question, as of the date of its entry, August 7,1902, which was long before the deed was given, on October 2, 1902, grows out of the provisions of the Code of Civil Procedure, viz.:
*114Section 1272 provides that the article in which it is found (Chap. 11, tit. 1, art. 3) “applies only to a judgment wholly or partly for a sum of money, or directing. the payment of a sum of money.” There can be no doubt but that the foreclosure judgment is covered by this provision. So far as it awards payment of the deficiency by a defendant, it is a judgment for a sum of money, and directs the payment of a sum of money.
The amount is not specified in figures, but section 1272 does not require a specific amount to be named.. Section 1246, which is found in article 3, above referred to, provides that the clerk must, , when he files a judgment roll, docket the judgment by entering in the docket book, among other particulars, “ the sum recovered or directed to be paid in figures.” Section 1250 provides that a judgment, required “ to be docketed as prescribed in this article,, neither effects real property or chattels real, nor is entitled to a preference, until the judgment-roll is filed and the judgment docketed.” Under these provisions of the statute, if a lien is ever acquired by virtue of á judgment for deficiency in a mortgage foreclosure action, it must be under the judgment wherein the sale is directed, and by virtue of the docketing of such judgment. A lien can only be acquired by virtue of the docketing of some judgment, and no. judgment can be legally docketed after the sale and the report thereof. The effect of the foreclosure judgment is that the defendant who is liable for deficiency is liable for the whole amount of the mortgage debt and costs, less such amount as shall be realized from a sale of the mort- • gaged property. This may be a large or a small amount, or nothing at all. The docket should show the whole amount in figures, with the statement that the defendant specified is liable for the deficiency. Thedien will then be for the whole amount, until it is reduced by the application of the proceeds of the sale. Then, on the confirmation of the report of sale, the clerk can enter the precise amount of the deficiency upon the docket, and thereafter that amount will be ■the extent of the lien. This procedure would protect all parties and would insure the owner of the mortgage debt a lien under his judgment in foreclosure, to which he is certainly .entitled. The defendant would not be seriously discommoded, because the time between the entry of the judgment and the sale and confirmation of the report thereof would not be long. It would be a monstrous *115proposition that no lien whatever could be acquired, and that the debtor could dispose of his real estate, as he has done here, and avoid any lien for his debt. I conclude that the judgment in question was a lien from the date of its entry for the amount of the deficiency specified, and that the appellants are entitled to the payment thereof from the proceeds of the sale of the one-ninth of the property in partition before payment of such proceeds to the respondents.
The judgment should be amended accordingly, with costs of this appeal to appellants.
Judgment for thirty dollars costs should be reversed.
McLennan, P. J., concurred.
Judgment and order affirmed, with costs.
Sic.