On Appeal from the Superior Court, Law Division, Bergen County.
Fritz, Kole and Lane. The opinion of the court was delivered by Kole, J.A.D.
The question posed by this appeal is whether a judgment at law against a husband for money damages imposes a lien upon an inchoate curtesy interest in lands owned by his wife. We answer this question in the negative.
Defendant guaranteed a promissory note of James L. Manolio, Inc., payable to plaintiff and due March 1, 1975. On February 21, 1975 defendant deeded to his wife land in Englewood Cliffs for $250. On March 10, 1975 defendant conveyed additional land therein to his wife for $250. Meanwhile, when the note came due it was presented for payment but was not paid. Plaintiff filed the instant action in November 1975 and obtained a default judgment against defendant on January 13, 1976 in the sum of $3,550.37 plus costs. On January 24, 1977 defendant was adjudged bankrupt in the United States District Court for the Southern District of Florida, and he was released from all dischargeable debts by an order dated April 28, 1977. In August 1978 defendant moved to cancel and discharge plaintiff's judgment on the basis of N.J.S.A. 2A:16-49.1. See Furnival Machinery Co. v. King , 142 N.J. Super. 251, 254-256 (App.Div.1976).
That statute provides for the procedure pursuant to which judgments reflecting debts discharged by federal bankruptcy proceedings may be canceled and discharged of record. It further provides:
. . . Where the judgment was a lien on real property owned by the bankrupt prior to the time he was adjudged a bankrupt, and not subject to be discharged or released under the provisions of the Bankruptcy Act, the lien thereof upon said real estate shall not be affected by said order and may be enforced, but in all other respects the judgment shall be of no force or validity, nor shall the same be a lien on real property acquired by him subsequent to his discharge in bankruptcy. . . .
The trial judge directed discharge of the judgment against the defendant individually but declared that the judgment remained a lien on the inchoate curtesy interest of defendant in the real property owned by his wife, which lien could not be levied upon or sold during the wife's lifetime. Defendant appeals from the determination that there is a lien upon his inchoate curtesy right.*fn1
"The judgment lien is purely a creature of . . . statute." Joseph Harris & Sons, Inc. v. Van Loan , 23 N.J. 466, 470 (1957); McLaughlin v. Whaland , 127 N.J. Eq. 393, 397 (Ch.1940). A judgment at law binds real estate as a lien against it by implication from N.J.S.A. 2A:16-1:
No judgment of the superior court, law division, or of the county court, law division, shall affect or bind any real estate, but from the time of the actual entry of such judgment on the minutes or records of the court.
However, a "judgment at law . . . constitute[s] no lien upon a mere equitable interest in land" that is subject to levy and sale by virtue of an execution thereon. McLaughlin v. Whaland, supra , 127 N.J. Eq. at 397. See, also, Yeck v. Rietzke , 33 N.J. Super. 371, 376-377 (App.Div.1954).
At common law, as modified by statute, curtesy initiate and curtesy consummate were leviable and salable under an execution. Hopper v. Gurtman , 126 ...