The question raised in this case is whether an attachment upon mesne process of a right in equity to redeem real estate from a mortgage continues for more than thirty days after final judgment in the suit, without further action by the officer or creditor within the thirty days. Inasmuch as such an attachment is essentially the creature of positive statute and is antagonistic to the common law idea of proprietary right, we must hold that the attachment continues no longer than the statute expressly or by necessary implication says it shall. We are not cited to any provision of the statute expressly declaring that the attachment shall so continue longer than thirty days after final judgment: but the defendant claims that such continuance is necessarily implied in R. S., c. 81, § 67, viz:
“An attachment of real or personal estate continues for thirty days, and no longer, after final judgment in the original suit, and not in review or error; except attachments of equities of redeeming real estate mortgaged or taken on execution; or equities of redemption sold on execution; or an obligee’s conditional right to a conveyance of real estate on execution; or property attached and replevied; or property attached belonging to a person dying thereafter, or specially provided for in any other case.”
We do not think such an implication is at all necessary. The exception “attachments of equities of redeeming real estate mortgaged” by the strict letter of section 67 may as well be from the general provision that attachments shall continue thirty days, leaving the excepted attachments without any life after judgment.
But to look solely at the language of section 67 is to take a
See. 38. “The seizure on execution is considered made on the day when notice of the sale is given, and it holds the right or interest seized within that time if the sale is not completed within thirty days after judgment; and the subsequent proceedings and return are valid, if made after the return day of the execution, or after removal or disability of the officer.”
The implication from this language certainly is that, if the estate be not seized and notice of sale given within the thirty days, the attachment will expire like other attachments.
In this case no seizure was made, nor was any notice of sale - given within the thirty days after judgment. Nothing was done to preserve the attachment and it accordingly expired with the lapse of the thirty days. The plaintiffs’ title by deed from the debtor is therefore better than the defendant’s title by subsequent levy, and he is entitled to redeem. The bill is sustained, and a decree will be made, according to the stipulation of the parties, that the plaintiff may redeem upon the payment of $833.64 plus the interest upon the principal of the mortgage notes from January 17, 1898, to the date of filing the decree, and that the defendant thereupon release all interest in the land described in the bill. No costs to either party.
Bill sustained,. Decree as above.