In this case, the return of the officer showed an attachment of all the real estate of Harry Downing in the town of East Kingston, and did not specifically refer to the premises in controversy. So far as I know, this question has not before being raised in this state. It is said, and I suppose truly, that the practice has been very general, and has become inveterate. There is, I apprehend, a material difference between an attachment of specific property by a description more or less general, and an attachment of real estate which does not attempt to specify anything the case of Howard v. Daniels, 2 N.H. 137, the return was of "the farm the defendant now lives on, with his tannery, c., thereon."
WOODBURY, J., speaking of the object of an attachment, says, —
"It is merely to caution the public and the debtor that the land attached is intended to be considered by the creditor as eventual security for his debt. A description of it, therefore, as `the farm the defendant now lives on, with his tannery, c., thereon,' could not fail to apprise the defendant and all others in interest what premises were intended. The return is sustained expressly on the ground that, although somewhat *Page 495 general, it could not fail to point out sufficiently the very premises intended to be attached." It strikes one oddly to see this case cited as an authority to sustain a return which purposely avoids pointing out any property specifically as that attached, and aims to enclose, as with a dragnet, property to be afterwards hunted up and brought within its grasp by such evidence as may be found.
In Bryant v. Osgood, FOSTER, J., says, — "Probably all attachment of real estate, by leaving a copy of a return expressed in such general terms, would be held sufficient, if the point were distinctly raised, on the ground that since the law provides for the registration of land titles, a reference to the county records would disclose the precise property referred to in the officer's return, and id certum est. c." It might, perhaps, however, be fairly suggested that the registration does by no means show all the interests in lands which may be the subject of attachment. I know of no way in which the transmission of land by descent or devise becomes matter of registration. It is also provided by statute, that by an attachment of real estate the debtor's right to receive a conveyance thereof by any contract may be held. There is also a variety of leasehold interests, which, though not required by law to be registered, yet might be valuable as subjects of attachment. The object of an attachment in general terms, like that under consideration, is not to attach anything in particular, but to leave the attachment ambulatory, so that it may go about afterwards seeking what it may lay hold of. This leaves a very wide margin for the investigation of facts outside of the registry, and it seems to me is calculated to lead to intolerable confusion. It may be that this custom is too inveterate to be destroyed by a judicial decision; but such a form of attachment certainly has none of the requisites, and is in no way calculated to produce the results, which the learned judge in Howard v. Daniels describes as the proper object to be attained.
If, however, this difficulty can be got over, there is in my mind still another. In Bryant v. Osgood, 52 N.H. 189, it is remarked by FOSTER, J., with great justice, that, "as between an attaching creditor and a bona fide purchaser, there can be no superiority or preference, upon any equitable considerations." It appears that, at the time when the attachment was made, the property had been sold and conveyed by Harry Downing to Ezra Downing, and by Ezra Downing to the plaintiff; but the deeds were not recorded till after the attachment. The property, therefore, on which the levy was made was not at the time of the attachment the property of Harry Downing. The sale from Harry to Ezra, and from Ezra to the plaintiff, has not been impeached on the ground of fraud. Up to this time the plaintiff must be taken to be an honest purchaser for value, and the property had wholly passed from Harry Downing to her. The plaintiff's neglect to record her deed is neither fraud nor evidence of fraud. It simply shows that she did not know what was necessary to do in order to secure her rights. The plaintiff had permitted the property to remain so situated that it was doubtless liable to attachment as the property *Page 496 of Harry Downing; but it was not his property, and could not rightly be so described.
It is true, that by the statute — Gen. Stats., ch. 121, sec. 4 — no deed,c., shall be valid to hold the same against any person but the grantor and his heirs only, unless such deed, c., be attested, acknowledged, recorded,c. But the construction of this statute has always been that the object of this provision is to give notice, and that, in fact, unrecorded deeds are good against subsequent purchasers and attaching creditors who have notice, either actual or constructive; so that there is a side margin for investigation outside of the record. It will be remembered that we are now talking about the sufficiency of a description. The party claiming to hold by this attachment has to show that the property was owned by Harry Downing; and it would seem not to be enough to show by the record that the title had once been in him, but it would also be necessary to go on further, and show that it had not passed from him. And he would have to show, not only that there was no record, but that he had no notice, in order to make out that as to him the property was still Harry Downing's. But whatever may be the rule as to the burden of proof in such a case, it is manifest that vagueness of the return cannot be made certain by the registry merely.
It appears to me, that, by the spirit of all the decisions, it must be considered that the ownership of that property had passed from Harry Downing to the plaintiff. It was so situated that the defendants, if they had no notice of the conveyance, could by law seize it, and apply it to the payment of their debt. But this was not because it was Harry Downing's property, but because, through the ignorance or misfortune of the plaintiff, her property was liable to be taken to pay Harry Downing's debt. Under such circumstances I think the property could not be described as Harry Downing's in the officer's return, but should have been attached as his by its specific description.
The present term has witnessed the close or a controversy which well illustrates the folly of tolerating and encouraging this slipshod way of conveyancing and attaching property. The cause I speak of was commenced in 1852. The plaintiff held two mortgage deeds, in each of which the description of the property contained these words, "on which I now live, and which I now carry on," — being nearly the same terms as used in the officer's return in Howard v. Daniels; and the matter in controversy was, whether the land in dispute was or was not described in these terms. After many years of litigation, it was settled by the verdict of a jury that these words in one deed did describe the land in controversy, and in the other did not. It happened so that, the same fact being still open to controversy by another plaintiff, the cause was again tried, as I understand, on the same evidence, and in fact, to a great extent, on identically the same depositions, and the result was a verdict that the land in dispute was not included in the other mortgage. Id certum est quod certum fieri potest. If there is any duty imperative on courts of justice, it is to discourage in every possible form these loose modes of doing *Page 497 business. So far as I know, this question is new in New Hampshire. We cannot deprive parties of their right to make their conveyances as they see fit to do, but we have some power to require precision in the officer's returns of the attachment of property.
My learned brethren do not agree with me. While, therefore, I acquiesce in the result, it seems worth while, by a little discussion, to call attention to this view of the question. The cases which hold that, notwithstanding the peculiar terms of the statute, an unrecorded deed makes a good title against subsequent purchasers and attaching creditors with notice, are too numerous to require citation here.
In regard to the other questions raised in the case, I do not differ from my brothers LADD and SMITH.
Judgment on the verdict.