Houston v. Jordan

Appleton, J.

— This is a writ of entry, in which the demandant claims upon his own seizin to recover a certain parcel of land in the town of Monson, the boundaries of which are duly set forth. It is in proof, that Daniel Rice, on Oct. 4, 1849, gave one Cyrus Packard a bond to convey to him the demanded premises upon certain conditions therein specified ; that on Feb. 6, 1850, all the right, title and interest of said Packard to any and all real estate in the county of Piscataquis was attached on a writ in favor of the plaintiff against him ; that on March 11, 1850, a similar attachment was made in favor of P. H. Rice & Co.; that these suits were entered and judgment thereon rendered, March term, 1851; that executions issued ; that within thirty days after the rendition of judgment the plaintiff iu this action caused his execution to be extended upon the premises demanded ; that Rice & Co. on their execution seized and sold the plaintiff said Packard’s right in equity of redeeming said premises and also ail his right to a conveyance thereof by virtue of said bond; and that the levy and the sales before mentioned were all in due form of law. After the attachments of Packard’s interest, he assigned, on June 3, 1850, his bond from Daniel Rice to the defendant, to whom said Rice, on Jan. 4, 1851, conveyed the premises therein described. At the time of the levy the conditions of the bond had been performed, and the fee of the estate levied upon was in the defendant, the assignee of Packard. It is conceded that the plaintiff acquired nothing by his levy, unless in consequence of the provisions of the statute of 1847, c. 21.

To determine the true construction of that Act, it becomes necessary to advert to the preceding legislation in reference to the attachment, and sales of the interest of debtors in bonds for the conveyance of real estate, aud to the decisions upon such legislation, so far as they bear upon the questions here presented for our determination. The right to attach and sell on execution the interest of a debtor, by virtue of a bond for the conveyance of real estate, was first given by the statute of 1829, c. 431. In Aiken v. Medex, 15 Maine, 157, the course to be pursued to perfect the lien acquired by attachment, first received the consideration of the Court. Iu that case, after the attachment, aud before judgment, the debtor paid the money due on the bond and took a conveyance to himself and instantly conveyed to a third person. The judgment creditor, instead of soiling the right acquired by attachment, according to the provisions of the statute of 1829, c. 431, proceeded to extend his execution upon the land. The Court there held, that the creditor not having followed the requirements of the statute, by selling the interest attached on the execution, had lost the lien created by his attachment, and acquired nothing by his levy. The fee of the land was not in the debtor, either in that case or in this, at the time of the levy. In that case, it had been conveyed to the obligee, and from him the title had passed before the levy, but in this, the fee passed directly from the obligor to the defendant, the assignee of the bond, so that the debtor was never seized of the premises upon which the levy was had.

The law thus having been settled, that the judgment creditor, if he wishes to perfect the lien acquired by the attachment, must sell on the execution the interest of his debtor as attached, and if, instead of a sale, he chooses to resort to a levy, when a conveyance has been made, that his rights will date from the levy and not from the attachment, the statute of 1847, c. 21 was passed. By <§> 1, of this Act, it is provided, that whenever under the provisions of R; S. c. 114, ■§> 73, “ the right, title and interest, which any person has by virtue of a bond or contract to a deed of conveyance of real estate on specified conditions, shall have been attached, and during the existence of the attachment and before the same shall have been perfected by proceedings on execution, the obligor or his assigns shall have executed a deed of conveyance to the obligee or his assigns, pursuant to such bond or contract, the said attachment shall hold the premises so conveyed, as effectually as if the attachment had been originally made after such conveyance; and execution may be levied thereon as in other cases of real estate taken on execution.” it is insisted, that this Act authorizes the attaching creditor in all cases when there has been a conveyance from the obligor, after the attachment, whether to tile debtor, as whose it was attached, or to any one else upon the debtor’s assignment of the bond, to extend the execution upon the land conveyed, and that such levy would pass the estate, whether the fee was or had been in the debtor or not. We think such is not the law. The Act was manifestly passed to meet cases like Aiken v. Medex, and to enable the creditor when the title had, after the attachment, vested in the debtor before execution, to perfect his title in the premises by levy, “ as effectually as if the attachment had been originally made upon them after such conveyance. The debtor whose interest is attached, may be the obligee in tho bond or his assignee. When the person, (any person, in the language of the statute) whose right, title and interest is attached, and to whom the conveyance is made, is the obligee or assignee of the obligee, the statute applies and not otherwise. The person whose interest is attached, and to whoih the conveyance is made, must bo one and the same. The attachment is to hold the premises as effectually as if it had been made upon them after the conveyance. If this statute had been in force at the time of the decision of Aiken v. Medex, the levy would have held the estate. But in this case, had the attachment been originally made after the conveyance to the defendant and that lien been perfected by a levy, it would not have touched the fee. Whether the assignment of the bond, and the subsequent conveyance to the defendant, was in good faith or fraudulent, and for the avowed purpose of defrauding creditors, in either event the plaintiff would not have acquired any such legal title as would enable him to maintain this suit. The levy would only give him the interest of the debtor, but as the legal title was in the defendant, the plaintiff could not upon known or recognized principles of law divest him of it by a levy upon it as the estate of Packard. Blood v. Wood, 1 Metc. 528; Howe v. Bishop, 3 Metc. 27; Hascall v. Hilton, 30 Maine, 419. By the express provisions of the statute, the levy is to give no greater rights than if the attachment had been made before the conveyance, and what would be his rights in such case is to be determined by the common law.

The object of the statute was, in case of a conveyance to the debtor of the premises of which he had a bond, to enable the attaching creditor to levy and to provide that by such levy his title should reach back to the date of his attachment, and thus defeat any conveyances the debtor might have made and override any attachment made after the conveyance to him from the obligor, and this is effectually accomplished by the statute.

If the plaintiff has acquired rights by virtue of his levy or of the sale to him of Packard’s interest in the bond for a deed, his remedy is in equity, where the good or bad faith of the defendant can he investigated, and the rights of both parties definitively settled. But at law the plaintiff is without remedy. Shaw v. Wise, 1 Fairf. 113; Aiken v. Medex, 15 Maine, 157.

In this view of the case it becomes unnecessary to consider the other questions presented by the counsel for the plaintiff in his argument. Plaintiff nonsuit.

Shepuey, C. J., and Tenney, Rice and Hathaway, J. J., concurred.