Supreme Court, December, 1917. [Vol. 102. purchasers. On December 28, 1905, said Octavius 0. Cottle, as sole surviving executor of the last will and testament of John J. P. Read, executed and delivered a deed of said premises to his daughter Marion W. Cottle for the expressed consideration of one dollar. In February, 1914, more than fifteen years after the sale and the giving of the deed under foreclosure to Cottle and Hill, the New York Central and Hudson River Railroad Company began this proceeding to condemn the property in question for railroad purposes. An award was made and the report of commissioners confirmed. By the stipulation of all parties to the proceeding the amount of said award, to wit, the sum of $15,000, was paid into court in accordance with the provisions of section 3378 of the Code of Civil Procedure, the ownership and rights of the parties to said fund to be determined as therein provided. The referee to whom this matter was referred has reported that the people of the state of New York own and have title to said moneys, and that no party to the proceeding, other than the people, has any right, title or interest in said fund, or to the possession thereof. The conclusions of the learned referee are based on the theory and finding that by the last will and testament and codicil of the late John J. P. Read he made no disposition of the parcel of land condemned, that he died without heirs capable of inheriting the real estate in question, that the condemnation proceedings instituted by the New York, West Shore and Buffalo Railway Company in 1883 did not operate to transfer title to the railway company, that the purchase on foreclosure by the late Octavius O. Cottle and Clayton M. Hill was in violation of the trust relation they occupied to the estate of said John J. P. Read as executors of his will, and that the conveyance to them on such sale was open to attack and void, and that therefore the real property Misc.] Supreme Court, December, 1917. in question escheated to the people of the state of New York, and the state is entitled to the fund arising from its condemnation for railway purposes. Many difficult and interesting questions of law and fact are raised and discussed by the various claimants to the fund in their briefs and arguments submitted to the court. The main question, however, is whether, assuming John J. P. Read died intestate as to the real property condemned, there was an escheat to the state. I take it that this turns mainly on the question whether the land is to be deemed realty or personal property. The learned referee in his report and in his opinion appears to have proceeded entirely upon the theory that the land condemned is to be treated as real estate, so far as the interests of the people of the state of New York and other claimants are concerned. In this view the court is unable to concur. The New York, West Shore and Buffalo Railway Company instituted proceedings to condemn this property for railway purposes in 1883. The proceedings were carried to a final report of commissioners, which was confirmed by the court, and the West Shore Railroad Company paid into court a part of the award so made, but leaving the balance unpaid. It is true that under the statutes in force at the time of the entry of the final order in the condemnation proceeding Read's legal title to the property in question would have been divested only on payment or deposit of the amount of the award. Railroad Law (Laws 1850, chap. 140), as amd. by Laws of 1876, chap. 198, § 18. Read had an award for so much money for the property condemned, which had been paid in part. An award is deemed personal property. It is not land. This has been repeatedly and uniformly held in a series of well-considered decisions of the courts of this state. Wendel v. Binninger, 132 App. Div. 785-789; Matter of Supreme Court, December, 1917. [Vol. 102. Seventh Avenue, 59 id. 175-177; Van Loan v. City of New York, 105 id. 576; King v. City of New York, 102 N. Y. 171; Matter of Hamilton Street, 69 Misc. Rep. 371; Matter of Trinity Avenue, 116 App. Div. 252. An award, of the kind made, is a judgment, which may be enforced by action like other judgments. Donnelly v. City of Brooklyn, 121 N. Y. 15; Dolan v. City of New York, 62 id. 472. "An award is not land. It is personal prop erty that passes at death to the personal representative and not to the heir." Matter of Seventh Avenue, 59 App. Div. 175-177. In Wendel v. Binninger, 132 App. Div. 785-789, it was said: "The character of the real property was changed into personalty by the award and there is no equitable consideration which authorizes the court to treat an award as realty." It is unnecessary in this case to go to the extent of holding that the award to Read in the West Shore proceeding actually changed the character of the land itself into personalty. It is sufficient to say that the award became in effect a judgment for money, which is personalty, and that Read had an equitable lien on the land condemned as security for the payment of the amount awarded. This lien may be likened to the lien of a vendor on land sold for the payment of the purchase price. Not only had Read this equitable lien, but in the action brought by him in his lifetime against the West Shore Railroad Company and its receivers this lien was by the judgment of the court declared, and directed to be enforced by a sale of the property to satisfy it. Even though the land itself were to be deemed realty and subject to an escheat, nevertheless by section 68 of the Public Lands Law it is declared: "Lands escheated to the state for defect of heirs shall be held Misc.] Supreme Court, December, 1917. subject to the same trusts and incumbrances to which they would have been subject if they had descended." Consequently even though the state could claim a technical escheat, it took title subject to the claim of the real estate for the unpaid balance of the award made in the West Shore Railway proceeding, and subject to the decree of foreclosure and sale to satisfy that claim made and entered in Mr. Read's lifetime, which claim the estate had the right to enforce and did enforce by the sale in foreclosure. It should be noted, too, that although Read may possibly have had other remedies on the failure of the West Shore Railway Com: pany to pay the award, nevertheless he had personally elected to stand on the award, to treat the award as personalty, and to take the steps necessary to collect the amount by the sale of the property in question. Under such circumstances we are unable to see how there can be said to be any escheat, or how the state can assert the right to the land discharged of the unpaid balance of the award. In any event the land was sold under and pursuant to a perfectly valid decree of foreclosure and sale. Octavius O. Cottle and Clayton M. Hill bid it in in their individual interest. It is urged, however, that they owed the duty to the estate of John J. P. Read to have purchased the property as executors and to have held it for the benefit of those interested in the estate, and that they perpetrated at least a constructive legal fraud by taking title to themselves as individuals. Let us suppose that instead of purchasing for themselves the executors had bought in the property for the estate they represented, and had the referee's deed run to themselves as executors of Read's will. Then clearly under well-recognized rules of law and equity the real property so acquired would still partake of the character of personal property, and any money derived from the sale Supreme Court, December, 1917. [Vol. 102. of such property by the executors would not be distributed to heirs under the Statute of Descent, but would be distributed to next of kin under the Statute of Distribution governing personal property. The property may change its form, but the change does not affect the rights of parties in interest to have the property in its converted form treated the same as though the change had not been made. We may perhaps treat the property condemned by the West Shore Railway condemnation proceeding as sold to the West Shore Railway Company. It was a compulsory sale, to be sure; but the judgment of condemnation fixing the price to be paid was in legal effect tantamount to a sale obligating that company to pay the price fixed, evidenced by the judgment of condemnation. Read in his lifetime elected to treat it as a sale by seeking to enforce the award by a foreclosure sale of the property affected, and by a judgment for any deficiency arising. It is a rule of law and equity that where an owner sells land the nature of his estate is changed; and that the realty is in equity changed into personalty. Williams v. Haddock, 145 N. Y. 144; Beckrich v. City of North Tonawanda, 171 id. 300; Lewis v. Smith, 9 id. 502; Smith v. Gage, 41 Barb. 60; Moore v. Burrows, 34 id. 173; Johnson v. Corbett, 11 Paige, 265. After such a sale the vendor holds title as trustee for the vendee, and the proceeds of sale, even though received after the vendor's death, are distributed to the next of kin as personalty, and do not go to the heirsat-law as real property. We think this rule is applicable to the facts in the case. Although the technical legal title to the land itself remained in Read, nevertheless he held title as trustee for the West Shore Railway Company, and in this connection we call attention once more to the provisions of section 68 of the Public Lands Law declaring that |