If the judgment against the personal representatives of the decedent had been even prima facie proof of the original indebtedness, the copy of the docket of the judgment, in the supreme court, was not legal evidence that any such judgment had been recovered. Since the act of 1840 took effect, no docket of a judgment subsequently recovered in the supreme court, is valid for any purpose, unless it is entered in the county clerk’s office. And the copy of the docket never was legal evidence to prove the existence of a judgment, except in some special cases provided for by statute. The record of the judgment, or a sworn or exemplified copy thereof, must be produced. Even since the act of April last, (Laws of 1843, p. 228,) which make a judgment recovered against the personal representatives of the decedent, upon a trial on the *368merits, prima facie evidence of the debt, before the surrogate, upon an application for an order to sell or mortgage the real estate for the payment of debts, the record of the judgment, or an exemplified or sworn copy thereof, must be produced; in order that the surrogate, from an inspection thereof, may see that the existence of the debt was put in issue by the pleadings, and was passed upon by the jury, so as to constitute a trial of the cause upon the merits, within the meaning of the statute.
The appellant’s counsel is also right in supposing that, as the law stood when this case was before the surrogate, a judgment against the executors was no evidence whatever to establish the existence of the debt, for the purposes of the application which was then pending. The object of the proceeding is to establish a debt, for the purpose of divesting the heirs or devisees of "the decedent of their interest in his real estate, by a sale. Independent of the express provision of the act of 1837, (Laws of 1837, p. 536, § 72,) that upon such an application the debt is to be established in the. same manner as if the judgment against the executor or administrator had not been recovered, it was previously well settled that as there was no privity between the personal representatives of the decedent, and his heirs or devisees, in respect to his real estate. Neither an admission of the former, on oath, nor the recovery of a judgment against them, was therefore admissible as evdence of a debt due from the decedent, as against the owners of the real estate either by descent or devise. (See Mason's devisees v. Peters' ex'rs, 1 Munf. Rep. 437 ; and Osgood v. The Manhattan Company, 3 Cowen's Rep. 612.) And before the surrogate is authorized to make any order for the mortgaging, leasing or sale of the real property of the decedent, he must be satisfied, by legal proof, that the debts, for the purpose of satisfying which the application is made, are justly due and owing from the testator, or intestate, as against the owners of the real estate.
The order appealed from was therefore erroneous, and must be reversed with costs. And the respondent’s appli*369cation to sell or mortgage the real estate must be dismissed; but without prejudice to his right to institute new proceedings for that purpose, upon due proof of his debt, according to the provisions of the law now in force.