For these reasons we think that the order of the General Term should be reversed and the judgment entered on the report of the referee affirmed, with costs.

All concur.

Ordered accordingly.

THE FANEUIL HALL NATIONAL BANK, Plaintiff, v. JOHN BUSSING, Impleaded, etc., Defendant.

JOHN H. ROGAN, Receiver, etc., Respondent; WILLIAM D. BECK, Appellant.

1. SUPPLEMENTARY PROCEEDINGS

TITLE OF RECEIVER TO REAL

ESTATE - CODE OF CIVIL PROCEDURE, § 2468. A receiver appointed in proceedings supplementary to execution acquires no title to real estate situated in another county by filing the order appointing him or a certified copy thereof in such county as provided by the Code of Civil Procedure (2468), unless the judgment creditor has obtained a lien thereon by docketing the judgment in such county and has exhausted his legal remedy by execution against the property.

2. CONVEYANCE BY JUDGMENT DEBTOR. A conveyance made by a judgment debtor of real estate situated in another county than that in which a receiver in supplementary proceedings against him has been appointed, after the order appointing the receiver has been filed in such county, will vest a good title in the grantee as against the receiver, unless the judgment has been docketed in that county.

3. ORDER FOR RECEIVER TO SELL-MOTION TO VACATE. If a receiver appointed in supplementary proceedings is ordered by the court to sell property which has been conveyed by the judgment debtor, situated in another county, in which a copy of the order appointing the receiver has been filed, but in which the judgment has not been docketed nor execution issued, the judgment debtor's grantee or his successor in title may move to vacate the order although not a party to the action in which the judgment was recovered.

4. LAPSE OF LEGAL REMEDY. When a judgment creditor suffers his remedy at law against the realty of the judgment debtor to lapse by failing to docket the judgment in the county in which the realty is situated and issuing execution thereon, within ten years after the filing of the judgment roll (Code Civ. Pro. § 1251), his equitable remedies in respect to such realty are also cut off.

5. MOTION COLLATERAL ATTACK ON DEED. A deed of a judgment debtor's realty, and a partition suit based thereon, cannot be collaterally attacked on a motion made by a person claiming under such deed and suit, to set aside an order, directing a receiver appointed in supplementary proceedings in another county to sell the realty, on the ground that the judgment creditor had not docketed his judgment in the county where the realty was situated and issued execution thereon.

Mem. of decision below, 84 Hun, 615.

(Argued November 25, 1895; decided December 10, 1895.)

APPEAL from order of the General Term of the Supreme Court in the first judicial department, made April 11, 1895, which affirmed an order of the court at Special Term denying a motion made by one William D. Beck, the appellant, who was not a party to the action, to set aside an order granted at Special Term directing a receiver in supplementary proceedings of the property of the defendant, John Bussing, the judgment debtor of the plaintiff, to sell certain real estate of which the appellant was then the owner.

The facts, so far as material, are stated in the opinion.

Isaac H. Maynard for appellant. The order authorizing and directing the receiver to sell the real property in question of which the judgment debtor was seized of an unincumbered title in fee at the time of the appointment of the receiver, was made without authority of law, for the reason that such property being subject to the lien of the judgments under which the receiver was appointed, and liable to be sold on execution upon the judgments, could not be taken summarily by the receiver, even by order of the court, and sold, and the proceeds applied in payment of a judgment recovered eighteen years previously, and which, at the expiration of ten years, ceased to be a lien upon or bind the real property, the title of the judgment debtor having meanwhile become vested in the appellant. (F. N. Bank v. Martin, 49 Hun, 571; Bunn v. Daly, 24 Hun, 526; In re Inglehart, 1 Sheld. 514; A. C. N. Bank v. Gaynor, 67 How. Pr. 421; Pfluger v. Cornell, 2 C. C. Rep. 145; Tinkey v. Langdon, 13 Wkly. Dig. 385; V. M. Co. v. Wilkes, 30 N. Y. Supp. 381; Goodman v.

Stiles, 90 N. Y. 199; Moore v. Duffy, 74 Hun, 78.) The receiver in supplementary proceedings can have no greater authority over the real property of the judgment debtor than that conferred by law upon the receiver under a judgment. obtained by the same creditor in a judgment creditor's action. (Driggs v. Williams, 15 Abb. Pr. 477; Duffy v. Dawson, 2 Misc. Rep. 601; Allen v. Starring, 26 How. Pr. 57; Lynch v. Johnson, 48 N. Y. 33; Code Civ. Pro. § 1871-1879; Congden v. Lee, 3 Edw. Ch. 304.) The judgment having ceased to be a lien upon this real property, and the right to issue execution and enforce the collection of the judgment out of this property being barred by the provisions of the Code, and the title of the judgment debtor having become vested in the appellant, the court had no authority to order the appellant's property to be sold to satisfy the judgment debt. (Code Civ. Pro. §§ 414, 1251, 1252; In re Harmon, 79 Hun, 226; Borst v. Corey, 15 N. Y. 505; Rundle v. Allison, 34 N. Y. 180; In re Neilly, 94 N. Y. 382; De Pew v. Dewey, 2 T. & C. 515; 56 N. Y. 67; I. & T. N. Bank v. Quackenbush, 143 N. Y. 567.) The appellant's standing as the grantee of the judgment debtor's title was sufficiently established to entitle him to make the motion, and it is not affected by the claim made in the respondent's papers that Benjamin Valentine never accepted of the deed from the executrix of the judgment debtor, and never instituted or authorized the institution of the partition action. (Moore v. Duffy, 74 Hun, 78; Du Bois v. Cassidy, 75 N. Y. 298; A. Ins. Co. v. Oakley, 9 Paige, 486; Watrous v. Kearney, 11 Hun, 584; Vilas v. P. & M. R. R. Co., 123 N. Y. 440; Wing v. Rionda, 125 N. Y. 678.)

Frederick Smyth for respondent. The appellant Beck has no standing in court to move to vacate the orders made herein. The judgment debtor is the only person who can avail himself of any irregularity in the appointment of a receiver, but in the case at bar no irregularity exists. (Underwood v. Sutcliffe, 10 Hun, 453; 77 N. Y. 58; Powell v.

Opinion of the Court, per BARTLETT, J.

[Vol. 147.

Waldron, 89 N. Y. 328; Wright v. Nostrand, 94 N. Y. 31; Darrow v. Riley, 5 Misc. Rep. 363; Stanley v. U. N. Bank, 115 N. Y. 122.) The title of the judgment debtor to the real property in question vested in the receiver on the 24th day of November, 1876, upon the recording of the order of the receivership in the office of the clerk of Westchester county, under section 298 of the Code of Procedure and the corresponding section (2468) of the Code of Civil Procedure. (Nicoll v. Boyd, 90 N. Y. 516; Du Bois v. Cassidy, 75 N. Y. 298; Sayles v. Naylor, 5 N. Y. S. R. 816; Kimball v. Burrill, 14 N. Y. S. R. 536; Webb v. Osborne, 27 N. Y. S. R. 792; Fredericks v. Niver, 28 Hun, 417; V. M. Co. v. Wilkes, 30 N. Y. Supp. 381.) Where all the parties are before the court, and the sale is to be made pursuant to its decree and by an officer appointed by it for that purpose, the right of redemption will not be allowed, except by command of the statutes. (Crisfield v. Murdock, 38 N. Y. S. R. 828.) The notice to creditors in the action of Valentine v. Valentine, to which the receiver was not a party, was a delusion and insufficient to bar the receiver's title to the real property. Such publication bars general liens only, and the receiver's specific title is not affected by it. (Doremus v. Doremus, 66 Hun, 111.)

BARTLETT, J. On the 5th of April, 1876, the plaintiff recovered two judgments against the defendant, John Bussing, aggregating $2,400. On the 8th of July, 1876, the First National Bank of Port Chester also recovered a judg ment against the defendant for $829.30.

A receiver was appointed in supplementary proceedings under all the judgments in the city and county of New York and the orders filed and recorded in Westchester county in the autumn of 1876.

At that time the judgment debtor owned a quarter interest in fourteen and a half acres of land at Rye Beach in Westchester county.

John Bussing, the judgment debtor, died January 8th, 1877,

N. Y. Rep.] Opinion of the Court, per Bartlett, J.

leaving a will and making his wife executrix with full power to sell his real estate, and in pursuance thereof she conveyed testator's interest in the Rye Beach property to her brother, Ebenezer Valentine, but the deed was not recorded until February 10th, 1885.

Prior to 1884, William D. Beck, the appellant, had become the owner of the Rye Beach property with the exception of the judgment debtor's interest, and during that year Valentine, the grantee of Bussing's share of the property, commenced an action in partition against Beck, which proceeded to judgment and sale, and Beck, the appellant, purchased the entire property.

For about ten years thereafter Beck remained in undisturbed possession until motion was made in the spring of 1894 for an order requiring the receiver in supplementary proceedings to sell the right, title and interest of the judgment debtor, Bussing, in the property. This order was granted and Beck moved to vacate it, to set aside the receivership and for other relief; this motion was denied without opinion in the court below either at Special or General Term, and the correctness of that decision is now to be considered.

It is to be remarked that Amanda Bussing, the executrix of the judgment debtor, consented to the order of sale notwithstanding the fact that eighteen years before she had conveyed to the grantor of the appellant the judgment debtor's interest in the Rye Beach property.

It also appears that the original receiver in supplementary proceedings, appointed in 1876, was discharged without notice. to any one March 20th, 1894, and John H. Rogan, the present receiver, was appointed in his place, gave bond and entered upon the discharge of his duties. The material facts are not disputed. The position of the present receiver is that filing and recording in Westchester county, in the autumn of 1876, the orders appointing the original receiver vested in the latter the legal title of the judgment debtor, and that the subsequent. sale by the executrix of the judgment debtor of his interest in the property to Valentine was a nullity; that the legal title: