Hanson v. Dow

The opinion of the Court was drawn up by

Rice, J.

We do not find sufficient evidence in this case to establish the charge of fraud against any of the defendants. Nor are there any superior equities in favor of either party. It is the ordinary case of creditors seeking, through different instrumentalities, to avail themselves of the effects of a common debtor, by conveyances from him, or by legal process against him.

William Harmon, by virtue of a contract in writing from Oliver How and Almon L. Hobson, dated February 2d, 1849, had the right to a conveyance of the land now the subject of controversy, on certain conditions, which the plaintiff alleges have been performed. The defendants claim under mesne conveyances from said William Harmon. The plaintiff claims to hold the rights of said Harmon under the contract above referred to, by virtue of an attachment on a writ in favor of Joseph Hobson, jr., against said Harmon, on which the' officer, on the 18th of June, 1858, attached "all the x’ight, title, ixxterest, estate, claim and demand of every xxame axxd nature, of said ilaxinon, iix and to any axxd all real estate in the countywhich attachment was duly recorded, the action seasonably exxtered in Coux’t, judgmexxt recovered, Harmon’s interest under said contract sold on execution, and conveyed by the officer to the' plaixitiff, by deed dated June 25th, 1859. Under this deed, the plaintiff now claims a decree against the defendants, or such of them as hold the legal estate, for a specific performance of the coxxtract, from Dow and Hobson to William Harmon, in accordance with its terms and coxxditions.

The defendants deny the right of the plaintiff generally, and especially deny that axxy lien upon the estate in contx'oversy was created by virtue of the attachment oxx the writ, Hobson, jr., against Harmon, referred to above.

This question becomes material, as the plaixxtiff concedes that, if he fails to establish a lien by virtue of that attachmeixt, he is not exxtitled to recover, xxixless the evidence produced satisfies the Coux-t that the allegations of fraud oxx the part of the defendant are sustained.

The writ, on which the attachment was made, contains foxxr counts, each purporting .to be for differexxt causes of actioxx. Two of the counts are for xxotes specifically dosexfibed and two are money coxuxts.

. Section 30 of c. 81, R. S., provides for the recording of attachmeixts on real estate, to create a lien thereby.

Section 31, of the same chapter, px’ovides that xxo such attachxneixt, though made axxd notice thereof givexx, as directed in the preceding section, shall be valid, unless the plaintiff’s demand, on which ho founds his action and the nature and amount thereof, are substantially set forth in proper counts, or a specification thereof is annexed to the writ.

There does not appear to have been annexed to the writ any specification of the claims to be proved under the money counts. This omission, the defendants contend, is fatal to the validity oí the attachment and, consequently, decisive of the plaintiff’s claim.

It was well remarked by Wells, J., in the case of Saco v. Hopkinton, 29 Maine, 268, that "the intention of the statute must have been to require an attaching creditor to furnish such information by his writ, to subsequent attaching creditor’s and purchasers, as would enable them to know what his demand was, and that it should be so specific as to prevent any other demand from being’ substituted in the place of the demand sued.”

That case failed for want "of specifications. But, it is contended by the plaintiff, that the reason for that decision does not apply in this case, inasmuch as in that case all the counts were general, whereas in this, there are two specific counts upon notes, on which it is to be inferred the judgment was rendered, as those notes, with legal interest added, produce the precise sum for which judgment was entered up. This coincidence may raise a presumption that the fact is as claimed, but such presumption is by no means conclusive. The same result might have been produced by legitimate evidence under either of the money counts.

The plaintiff seeks to obtain the estate by the aid of legal process, and not by the voluntary act of the original debtor. To succeed, he must show that the provisions of the statute have been strictly pursued. This he has failed to do, and, consequently, must fail in his object.

Bill dismissed with costs for defendants.

Appleton, C. J., Cutting, Davis and Walton, JJ., concurred.

Kent, J., did not concur.