The opinion
By the Court —
Ingraham, P. J.
The case of Tallman v. Farley (1 Barb. S. C., 280) is not a case similar to the present. In that case the deed of the lots was left in escrow, under an agreement that the purchaser should go on and erect buildings thereon, and, when money sufficient had been expended on the building to secure the consideration money for the land and the amount of money advanced by the seller, the deed was to be delivered and a mortgage executed for the whole.
The judgments claimed in the case were recovered prior to delivering the deed, and the judgment creditor sought to be preferred over the mortgage; and the court held that the mortgage constituted an equitable lien, entitled to preference over the judgment. It was there said, that the judgment creditor is entitled to all that the debtor had in the property at the time of the recovery of the judgment. They can take all that belonged to the creditor and no more. Part of the consideration of the mortgage, in that case, was the consideration money for the land, which is always entitled to priority over a prior judgment.
The correct rule is given by the chancellor, in Kinsted v. Avery ( 4 Paige, 9 ), when he says: “ A judgment, being a general lien on the land of the debtor, is subject to every *516 equity which existed against the land in the hands of the judgment debtor at the time of docketing of the judgment.” So, in The Matter of Howe ( 1 Paige, 125 ), it was held, that judgment creditors had no preference over prior equitable claims, but were limited to the estate as it existed at the time of recovering the judgment. An equitable mortgage, not recorded, was given priority over judgments docketed subject to the agreement for the mortgage.
So, when a defective mortgage was perfected after judgment recovered prior thereto, the court decreed a perpetual injunction against the judgment, unless the creditor would redeem the mortgage. (See, also, Brown v. Brown, 3 Ves., Jr., 576; Finch v. Earl of Winchelsea, 1 P. Wins., 282; Foster v. Forrest, 2 Serg. & Rawle, 11 ; Burchard v. Phillips, 11 Paige, 66 .
In all the cases I find the principle to be the same, viz., that the equitable claim on land which existed prior to the recovery of the judgment is given a preference over judgments docketed afterward; but in no case is that preference given where the equitable right did not exist prior to the recovery of the judgment.
I know of no principle of equity by which a purchaser of real estate, or of .a lease, which, at the time of the purchase, is subject to the lien of a judgment, can claim improvements subsequently made by him, although without knowledge of the judgment, to be exempt from the lien. The law supposes the party purchasing to know of the lien, and charges on him the consequences of such knowledge. If, when such a lien exists, he voluntarily expends money on the premises, the same becomes subject to the lien. Any other rule would actually destroy the lien of a judgment on real estate. The principle upon which equitable liens are allowed to have priority is, that the contract was made before the docketing of the judgment. After that date, the property, with any subsequent improvements, is subject to the lien.
Where something has been done by the assignee of a lease to preserve the lease from forfeiture, it may be that equity would enforce a priority for the payment of such claim over *517 a prior judgment. But such claim must be for some other cause than the ordinary rent and taxes of the premises. It must be something which the lessee was not bound by the lease to pay, and which has had the effect to preserve the security for the benefit of a judgment creditor. Such a claim would be the payment of an assessment which the lessee was-bound to pay and did not, the payment of which prevented the termination of the lease by a sale.
The learned justice erred in holding that the moneys expended after the recovery of the judgment by the plaintiff' were exempt from the lien of the judgment recovered prior thereto, and should be paid before such judgment.
Judgment should be reversed and a new trial granted, costs to abide event.
Judgment reversed.