McKenna v. Duffy. If the parties desire to proceed in this irregular way, as far as non-residents are concerned, they must put upon the record the evidence of the attorney's authority to act before purchaser can be compelled to take the title. The purchaser at a partition sale is entitled to purchase under a judgment which is binding upon the parties to the action, and cannot be compelled to take title under a judgment which several of those parties might, as a matter of right, claim should be set aside. As far as this purchaser is concerned, the judgment has no more validity than if it had been entered without any proof of service of the summons or any appearance by attorney of the non-resident defendants. There is another objection to the regularity of the decree entered in this action, which, although not taken by the appellant, yet it is proper that this court should take notice of the same; and that is the direction in the judgment that the share of each party is to be paid to the party or to his attorney, evidently referring to his attorney of record. This is in direct violation of the provisions of section 1580 of the Code. By section 1579 it is provided that where final judgment confirming a sale is rendered, the costs of each party to the action and the expenses of the sale must be deducted from the proceeds of sale, and each party's costs must be paid to his attorney. But, when it comes to the distribution of the proceeds of the sale, after deducting the expenses and costs chargeable against them, a different provision is made by section 1580, which provides that the proceeds of the sale, after deducting therefrom the costs and expenses, must be awarded to the parties whose rights and interests have been sold, in proportion thereto, and not to the party or his attorney. The intention is manifest that the costs and expenses are to be paid to the attorney, and the balance of the proceeds to be paid to the parties, and must be so VOL. XXII.-24. McKenna v. Duffy. awarded by the final judgment or decree. In the case at bar the award is to the party or his attorney, no regard being had to the distinction made in the sections of the Code above referred to between costs and principal. The order appealed from should, therefore, be reversed, with costs and disbursements of the appeal, and the motion granted, with costs. O'BRIEN, J., concurred. BARRETT, J. (concurring).-The purchaser in his motion papers questioned the authority of the attorneys for the non-residents, and stated that he had been unable to find any such authority. That, at least, put upon those seeking to uphold the judgment the burden of meeting such doubts by clear proof of authority, verified in such a manner as to furnish lasting evidence upon the record. It certainly was not the purchaser's duty to go or send abroad to find and file such record proof. I also feel that a purchaser should not be required to take title in a case where the plaintiff's attorney was never apparently substituted by any order of the court, and where there is not the slightest record evidence of his right to enter the case at all. Bowman v. Hoffman. BOWMAN, AS ASSIGNEE OF LOUIS R. MENGER, FOR THE BENEFIT OF HIS CREDITORS, v. HOFFMAN AND ANOTHER. NEW YORK COURT OF COMMON PLEAS, EQUITY TERM; AUGUST, 1892. S$ 382, 388, 410, 1737 et seq. Limitation of action--to foreclose lien on chattel. By the pledge of a chattel as security for a debt, the title to the chattel does not pass to the pledgee, but remains in the pledgor until it is divested by a sale upon notice or by judicial proceeding, [1] and it passes by an assignment made by the pledgee for the benefit of his creditors.[2] The right of a pledgee to hold possession of the property pledged is not affected by the recovery of judgment against the pledgor for the amount of the indebtedness to secure which the property was pledged,[4] nor is it affected by the fact that a receivership of the pledgor's property in supplementary proceedings has been extended to the pledgee's judgment.[3] The statute of limitations does not commence to run against a cause of action to foreclose a lien upon a chattel pledged to secure a debt so long as the right of the pledgor to redeem exists, and where such right to redeem is not limited by agreement, and the right to redeem has not been asserted, the action is not barred by any lapse of time. [5–11] Bailey v. Drew (17 St. Rep. 185);[7, 10] Miner v. Beekman (50 N. Y. 337); Purdy v. Sistare (2 Hun, 126);[8] Roberts v. Berdell (15 Abb. Pr. N. S. 183) [9] followed. Roberts v. Sikes (30 Barb. 173) not followed, and held to have been overruled. [6, 7] (Decided August, 1892.) Bowman v. Hoffman. Motion by the defendant Pate, as receiver of the property of the defendant Hoffman, to dismiss the complaint made upon the trial of an action to foreclose a lien upon a chattel. The facts are stated in the opinion. C. E. Souther, for defendant Pate, and motion. Halcyon M. Close, for plaintiff, opposed. GIEGERICH, J.-This action is brought by the assignee of one Louis R. Menger to foreclose a lien on an oilpainting, entitled "Niagara," which is alleged to have been pledged by the defendant Hoffman to secure the payment of a debt, or demand, owing by said defendant Hoffman to said Menger for work and materials furnished and money loaned by said Menger to defendant Hoffman between the 20th day of August, 1869, and the 27th day of November, 1878. The complaint further alleges that, on or about the 15th day of January, 1885, the said Menger made an assignment to the plaintiff of all his property and assets, including the debt mentioned and the security pledged therefor, for the benefit of creditors; that, on or about the 14th day of March, 1889, the plaintiff recovered judgment against the defendant Hoffman in this court for the above-mentioned demand; that an execution was issued to the sheriff, and returned wholly unsatisfied; that, on or about the 28th day of July, 1890, the defendant Pate was, by an order of the supreme court, duly appointed as the receiver in supplementary proceedings of all the property of the said defendant Hoffman, and thereafter this court, by its order, extended the receivership of the defendant Pate to supplementary proceedings upon it; and that, on or about the 27th day of October, 1890, in proceedings had for the purpose, the supreme court granted Bowman v. Hoffman. leave to the plaintiff to sue the defendant Pate as receiver and to bring this action. The defendant Pate, as such receiver, by his answer, among other things, interposes two defenses of the stat ute of limitations-namely: "Second, That the cause of action therein stated did not accrue within six years before the commencement of this action. Third, That the cause of action therein stated did not accrue within ten years before the commencement of this action." Upon questions of fact raised by the pleadings, issues were framed by an order in this action dated January 20, 1892, by which it is provided that, in case the complaint be not dismissed upon the issues of law raised by the second and third defenses stated in the answer thereto of the defendant Pate, the questions of fact annexed to said order be submitted to a jury and their verdict had thereupon. By the pledge of the chattel as security for the debt the title of the chattel did not pass to the pledgee. The title remained in the pledgor until it was divested [1] by a sale upon notice or by judicial proceeding (Markham v. Jauden, 41 N. Y. 235; Stearns v. Marsh, 4 Denio, 230; Brownell v. Hawkins, 4 Barb. 491; Gruman v. Smith, 81 N. Y. 25; Bailey v. Drew, 17 St. R. 185). [2] The special property of Menger in the painting passed to the plaintiff on the assignment by said Menger to the plaintiff of all his property for the benefit of his creditors. The fact that the receiver of the property of the defendant Hoffman, appointed on the application of an other creditor, was extended so that the receiver[3] ship would include the judgment obtained by the plaintiff, did not affect his right to hold the security until the debt was paid (Pate v. Hoffman, 40 St. R. 915; s. c., 16 N. Y. Supp. 74). The right of plaintiff to hold possession of the prop |