The subject of judgments and their effect as liens was very fully considered by the chancellor, in Buchan v. Sumner, (2 Barb. Ch. 193 et seq.) Previous to the revised statutes of 1830, he observes, a judgment in a court of record in this state was a lien upon the lands of the judgment debtor from the time of the entry of such judgment, whether docketed or not. But by the statute then in force, if the judgment was not properly docketed, it did not affect the lands of the judgment debtor, as against subsequent purchasers or mortgagees. (1 R. L. of 1813, p. 501, § 13.) Even as to them, however, the undocketed judgment was entitled to priority in equity, if the purchaser or mortgagee had notice of its existence at the time of his purchase, or when he took his mortgage. (Davis v. The Earl of Strattsmore, 16 Ves. 420.) That statute made no provision for priority in favor of the lien of subsequent judgment creditors. The first judgment, although not docketed, was therefore entitled to a preference over the lien of a junior judgment, which had been docketed as directed by the statute. But if the land of the debtor had been sold by the sheriff, under an execution upon the junior judgment, to a purchaser who was ignorant of the existence of the prior docketed judgment, such purchaser took the land discharged of the lien of the undocketed judgment.

The revised statutes of 1830 made a very material alteration in the law relative to the lien of judgments. The 12th section of the title in relation to judgments (2 R. S. 360) declares that no judgment shall affect any lands, tenements, real estate or chattels real, or have any preference as against other judgment creditors, until the record thereof shall be filed and docketed, as therein directed. The effect of this provision appears to be to prevent the common law lien of the judgment from attaching at all upon the real estate of the judgment debtor until the judgment has been docketed; and not merely to protect bona fide purchasers and incumbrancers, who had no notice of the existence of the judgment when their interests in, or liens upon, the real estate of the judgment debtor accrued. The same policy was carried out in the act of the 14th May, 1840, (Laws of 1840, ch. 386, § 25, p. 334,) the 25th section of which declares that no judgment or decree, which should be entered after that act took effect, should be a lien upon real estate, unless the same should be docketed in books provided for that purpose by the county clerk of the county where the lands are situate. The existing law, as prescribed by the code of 1851, § 28, (5 R. S. 545, 5th ed.)

is substantially the same. It provides that on filing a judgment roll, directing in whole or in part the payment of money, it may be docketed with the clerk of the county where it was rendered, and in any other county, upon filing with the clerk thereof a transcript of the original docket, and it is made a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where it was rendered.

The code of procedure, (§ 63,) also provides for docketing the judgment rendered by a justice of the peace, when the amount of the judgment exceeds twenty-five dollars, by filing and docketing & transcript of the judgment in the office of the clerk of the county where the judgment was rendered. From the time of the receipt of the transcript the judgment is treated as a judgment of the county court. A certified copy of this transcript may be filed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered; except that it shall be a lien, only from the time of filing and docketing the transcript. The lien of such a judgment on real estate is coextensive with that of a judgment of the county court. (Waltermire v. Westover, 4 Kern. 16. Crippen v. Hudson, 3 id. 161. Dickinson v. Smith, 25 Barb. 102.)

A judgment does not lose its lien upon real estate by the suffering of an execution issued thereon to lie dormant in the sheriff's hands. The doctrine on the subject of dormant executions does not apply to real estate; the lien upon which depends upon the docketing of the judgment, and not upon the execution or levy. And such lien does not become dormant until the expiration of the statutory limitation of ten years. (Muir v. Leitch, 7 Barb. 341.)

Since the act of 1840, judgments are liens upon real estate only when docketed in the offices of the clerks of the counties where the premises are situated. (Johnson v. Fitzhugh, 3 Barb. Ch. 360.) Judgments of the supreme court prior to the act of 1840 are not affected by it, and such judgments continue a lien upon lands throughout the state, though they have been revived by scire facias since that act took effect. (Clark v. Dakin, 2 Barb. Ch. 36.)

The lien of a judgment ceases absolutely, after the lapse of ten

years from its docketing, as against subsequent mortgages, judgments or other incumbrances; and as to them, the question of notice, actual or constructive, cannot arise. (Little v. Harvey, 9 Wend. 157.) And it seems that all purchasers are to be considered purchasers in good faith within the meaning of the act on this subject, except those who purchase with an actual fraudulent intent. And it does not alter the case that they purchased during the ten years, and with knowledge of the judgment. (Tuffts v. Tuffts, 18 Wend. 621. Lansing v. Vischer, 1 Cowen, 431. Crosier v. Arer, 7 Paige, 137.)

The judgments of which we have been speaking are judgments of the courts of this state. As there is no act of congress making a judgment in a court of the United States a lien upon lands, either within the general territorial juridiction of the court or elsewhere, the existence of such a lien must depend upon the local law of the state where the land is situated upon which such a lien is claimed. (Taylor v Thompson's Lessee, 5 Peters, 358. Manhattan Co. v. Evertson, 6 Paige, 467.) A judgment recovered in the district or circuit court of the United States for the northern or southern district of the state of New York is a lien upon lands throughout the state, for the term of ten years from the time of docketing such judgment, in conformity to the local law of the state. (The Manhattan Co. v. Evertson, supra.) But it seems that a judgment in favor of the United States, recovered in one of the federal courts out of the state of New York, is not a lien upon lands within that state from the docketing of the judgment; although by the law of the United States, an execution on such judgment may be issued against the defendant's property in any state of the Union.

If the lien of the judgment was coextensive with the right to issue execution, the recovery of a judgment in favor of the United States in the district of Louisiana, if duly docketed, would create a lien upon the lands of the debtor heir; so that no purchaser could consider himself safe in purchasing lands within the state until he had searched the records of every federal court throughout the whole extent of the Union. But a different rule prevails. The judgment of the federal court, to be a lien on the lands of the debtor in this state, must be a judgment of one of the federal courts within this state. (Id.)

There are other securities which become a lien on real estate. Thus, every person chosen or appointed to the office of collector, before he enters on the duties of his office, and within eight days after

he receives notice of the amount of the taxes to be collected by him, is required to execute to the supervisor of the town and to lodge with him, a bond, with one or more sureties to be approved by such supervisor, in double the amount of such taxes, conditioned for the faithful execution of his duties as such collector. (1 R. S. 346, § 19.) The supervisor is required to file such bond, with his approbation indorsed thereon, in the office of the county clerk, who is required to make an entry thereof in a book to be provided for that purpose, in the same manner in which judgments are entered of record. Every such bond is declared to be a lien on all the real estate held jointly or severally by the collector or his sureties within the county, at the time of the filing thereof, and to continue such lien till its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied. (Id. § 20.)

In the general act relative to villages, all taxes levied by virtue of the act are made a lien upon the real estate upon which they shall be assessed. (2 id. 712, 5th ed.)

Taxes charged on lands returned to the comptroller, and the interest thereon, are a lien upon such lands, and after remaining unpaid for two years from the first day of May following the year in which they were assessed, that officer is authorized to proceed to advertise and sell the land in the manner pointed out by law. (1 R. S. 930, 5th ed.) It is on this principle that taxes assessed on the estates of deceased persons previous to their death are entitled to priority of payment over debts due to individuals. (2 id. 87.)

Taxes imposed by the United States are a lien upon the real estate, and these, together with debts due to the government, are entitled to priority of payment in administering the estates of deceased persons; (2 R. S. 87 ;) but in the case of debts due to the government no lien is created, which will overreach a bona fide transfer of property in the ordinary course of business. It is a mere priority of payment, as among the creditors of a common debtor. (United States v. Fisher, 2 Cranch, 358.)

CHAPTER VI.

OF ESTATES IN EXPECTANCY.

SECTION I.

Of remainder, generally.

Estates, when considered with respect to the time of their enjoyment, are divided into estates in possession, and estates in expectancy. (1 R. 8. 722.)

An estate in possession is when the owner has an immediate right to the possession of the land. It is sometimes spoken of as an estate executed, when there is a present and immediate right of present or future enjoyment. (1 Prest. on Est. 62.) In this sense it applies to vested estates as distinguished from such as are contingent.

An estate in expectancy is when the right to the possession is postponed to a future period. (1 R. S. 723.) And in the revised statutes it is divided into 1. Estates commencing at a future day, denominated future estates; and 2. Reversions. (Id.) The first are created by the act of the parties; and the second by the act of the law.

Previous to 1830, the law on this abstruse branch of our jurisprudence was formed upon the model of the English law. We were governed by the common law. The revisers, as they tell us in their notes, (3 R. S. 570, 571, 2d ed.) with a view to extricate this branch of the law, from the perplexity and obscurity in which it was then involved, and render a system simple, uniform and intelligible, which, in its then present state, was various, complicated and abstruse, proposed certain alterations which were substantially adopted by the legislature. After pointing out some of the refinements and subtleties of the English law in this respect, they suggested that the obvious and effectual remedy was to abolish all technical rules and distinctions, having no relation to the essential nature of property, and the means of its beneficial enjoyment, but which, derived from the feudal system, rested solely upon feudal reasons; to define with precision the limits within which the power of alienation might be suspended by the creation of contingent estates, and to reduce all