Sears vs. Mack's Assignees. In the matter of the estate of William Renwick, deceased, 2 Brad. 394

The Surrogate. The real estate of the intestate having been sold for the payment of his debts, the surplus of the proceeds remaining after satisfying all claims, was distributed among the heirs of the intestate, except the share of Robert J. Renwick, which was reserved for further direetions. The statute directs the payment of" the surplus to the heirs, “ or the persons claiming under them ” (2 R. S., p. 107, § 43).

The sale and conveyance hy the administrator, under the order of the Surrogate, passed all the estate, right, and interest of the deceased in the lands, at the time of his death (2 R. 8., p. 105, § 31), and of course ousted the title of the heirs and all persons claiming under them.

But the title of the heirs to the surplus, remaining after the payment of the debts, is recognised by the statute; and if, at the time of the sale, there were liens by mortgage, judgment, or decree against the portions of any of the heirs, and which liens have been cut off by the sale,—it would seem equitable that, on a claim being filed, such liens should be admitted as a valid charge against the shares of the heirs in the surplus. Stephen Mack’s assignee, and William S. Sears, judgment creditors of Robert J.

Renwick, one of the heirs of the intestate, intervened for the protection of their respective interests, at an early stage of the proceedings instituted for the sale of the real estate ; and, on the distribution of the surplus, they claimed payment of their judgments out of the share of Robert. Mack recovered two judgments against Robert J. Renwick, in the Oom*t of Common Pleas of Tompkins county, on the 15th of March, 1841.

Transcripts were filed in the office of the clerk of the county of Mew York, on the 3rd of May, 1842; but the judgments were incorrectly docketed as perfected on 15th of March, 1842, instead of the 15th of March, 1841. Mr. Sears, whose judgment was recovered in the Supreme Court, on the 11th of December, 1847, and was regularly docketed in this county, claims that the judgments of Mack were not prior liens on Robert’s interest in the lands in question, by reason of the defect or error in the dockets.

He also urges that, even if correctly docketed, the liens had expired before the sale ordered by the Surrogate had been confirmed. The sale was made the 8th day of January, 1851; the report of sale was filed January 25th, and, on the same day, an order of confirmation was entered. On the 1st of February the order of confirmation was modified so as to except therefrom four lots; and, on the 9th of May, the order making this exception was vacated as to three of the lots.

I do not deem it necessary to discuss the effect of these several orders, being satisfied that the equity of general lien creditors is regulated by the time of the sale. Though the title is not divested until the conveyance' is made, yet, when the deed is executed, the equitable rights of the purchaser relate back to the time of sale. The rule in equity has been to inquire what liens existed at the time of sale, and to make distribution accordingly. If the defect or-error in the dockets of the Mack judgments was a vital one, then they were no liens at the time of the sale, and the question is at an end.

It is urged, however, that the error, supposing it fatal, was capable of amendment ; and the county judge of Tompkins county having, on the 9th of February, 1852, made an order directing the county clerk to correct the dockets, nunc pro tunc, it is insisted that the effect of this order was to make the judgments a lien.

Without inquiring whether the county judge was the proper officer to order the correction of the dockets, it is manifest that, even if the act of 1844, ch. 104, § 7, is retrospective, the order of the county judge was made after ten years since the recovery of the judgments, and of course at a period when, if originally docketed correctly, they would have ceased to become a lien. Before his order, the sale of the lands had been made, the title of the property been passed by the conveyance, the proceeds been paid into court, and the relative rights of all the parties been fixed.

I think the case is clearly brought within the language of the Chancellor in Buchan vs. Sumner, 2 Barb. Ch., R. 165, where he says, “ The rights of the parties to the surplus moneys were in nowise affected by the order of the Superior Court to amend the docket of the respondent’s judgment, mime pro tame.

Before that order was made, the mortgaged premises had been sold and conveyed by the master, and the surplus moneys had been brought into this Court; so that, if the Superior Court had the power, under the Act of April, 1844, to order a judgment to be docketed mmc pro time, so as to give it a priority as a lien upon real estate over an intermediate judgment, it could not give a lien upon real estate which had been sold and conveyed under a decree upon a prior incumbrance, long before that order was made,” It is clear, in the present case, that the order of the county judge could not make the judgments a lien on the lands, after the lapse of ten years since the recovery of the judgments, and after the lands had been duly sold upon a prior lien.

The force and effect claimed for his order, then, are no less than that it made the judgments a lien upon surplus moneys—-a subject over which, it seems to me, no jurisdiction was vested in him. In Buchan vs. Sumner, the order of the Superior Court amending the docket was made within ten years from the recovery of the judgment; in the present instance it was made after the expiration of the ten years. In other cases, action was had within the ten years. (Ex parte Butler vs. Lewis Co. C. P., 10 Wend., 542. Roth vs. Schloss, 6 Barb. 308.) In Hunt vs.

Grant, 19 Wend., 90, the order was made two years after judgment entered. That case establishes the power of the court to make the amendment in a material point, as against subsequent incumbrances; but it may well be doubted, if the relief would have been granted, if the lien, as against subsequent judgments, had expired without any proceedings having been taken to enforce it. The largest effect that can be claimed for the order of amendment of the county judge is, that it would have effected a lien nunc pro time, if there had been anything for it to act upon. And though.

I cannot perceive how the making the lien now as good as it might have been then, could have the effect of extending the lien beyond ten years, as against junior judgments; yet, supposing my view on that point erroneous, it seems a sufficient answer that the lands were sold and conveyed, and the power to amend was invoked too late. The question then is narrowed down to the point, whether the dockets of the judgments made on the 3rd day of May, 1842, weré so defective as to prevent a lien attaching on the lands ?

The statute declares that judgments shall not affect lands, unless docketed “ as herein directed” (2 R. S., p. 360, §11 [ § 12]); and provides that the clerk shall enter, in an alphabetical docket, a statement of such judgment, containing the names of the parties, “with their places of abode, titles, trades, or professions, if any such are stated in such record,” the amount of the judgment and costs, and “ the hour and day ” of entering such docket.

The act of 1840, directing judgments to be docketed in the office of the clerk of the county where the lands are situated, required the clerk to file the transcript and “ docket the judgment, in the manner required by law, specifying the court in which the judgment was recovered, the day and the hour on which it was perfected, and the day and hour of docketing the same.” ( Laws 1840, ch. 386, § 26.) Supposing “ day ” to mean date ; is an error in the date, of necessity fatal to the regularity of the docket?

If everything prescribed to make a perfect docket is essential, a mistake in the hour, the day of the month, or in the abode, title, trade, or profession of the parties, would be fatal. And yet, that can hardly be contended. What terms are mandatory and what directory in a statute, has often been discussed.

Negative words make a statute imperative ; and in this case the statute uses negative words: “ No judgment shall affect any lands, &c., unless the record thereof be filed and docketed, as herein directed.” These are imperative words (Dwarris on Statutes, 715); ¡but then, do they require a literal compliance in every precise particular, or a substantial compliance ? (Rex vs. Birmingham, 8 B. & C., 29.) A substantial compliance would appear to be sufficient. Form maybe of essence, but even then a substantial conformity is enough. {Davison vs.

Gill, 1 East., 62.) Time maybe of essence, but the precise time, in many cases, is not. (Rex vs. Loxdale, Burr, 447.) In Braithwaite vs. Watts, 2 Crom. 8 Jervis, 318, only the issues were docketed, and not the judgments. In Sale vs. Crompton, 2 Strange, 1209, there was a material error in the name. In Hunt vs. Grant, 19 Wend. 90, there was a mistake in the amount. In Landon vs. Ferguson, 3 Russ. Ch. R., 349, the judgments had not been docketed at all, through the fault of the clerk. In Buchan vs. Summer, 2 Barb. Ch. R. 165, the docket was not made under the surname, but the Christian name.

An error in the date of the judgment may be material, as, for example, where the judgment is described as perfected at an earlier period; but in the present case the mistake was in placing it a year later—a circumstance in nowise affecting or prejudicing the junior judgment creditor. The judgment was docketed. The docket stated exactly the names, amount, the day and hour when perfected, but erred in the year, maldng it 1842 instead of 1841. Though liens on land are given only by statute, and cannot be extended in equity (Mower vs.

Kipp, 6 Paige, 88; 6 Ohio R. 162), yet I am loth to hold the mistake of the docket in this case such a substantial and material defect, as to prevent the lien attaching; and must, therefore, decree payment out of the surplus moneys, first to the assignee of the Mack judgments.