Brown v. Allen

Emery, J.

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 much too narrow view. That section like every section and clause of a statute is to be read in connection with, and reference to, every part of the statute and the law, present and past. In the first statute upon the subject, 1821, c. 60, was included in one chapter all the provisions for the attachment of, and levy of execution upon, property. In section 1, — it was declared: “ That all goods and estate attached upon mesne process for the security of the debt or damages sued for, shall be held for the space of thirty days after final judgment, to be taken on execution; — and if the creditor shall not take them in execution within thirty days after judgment, the attachment shall be void.” There was no where in that statute any exception of any kind of any property from this necessity of being taken in execution within the thirty days. In section 17 — prescribing how equities of redemption of real estate mortgaged should be levied upon, as by sale, etc., — it was expressly provided that “the notifications aforesaid being given or posted up within the space of thirty days after judgment given, whereon such execution shall issue, the attachment shall hold the equity attached as aforesaid, until the levy of such execution can be completed in the manner hereinafter desci’ibed.” Here was an express provision that an attachment of an equity of redemption should continue longer than thirty days after judgment, provided the creditor gave certain notifications within the thirty days. This provision has never been dropped from the statute book, but has been continued in all the revisions, and now appears in the last revision of 1883 as § 38 of chap. 76, relating to sale of equities of redemption upon execution, viz:

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.

The phraseology of the section relied upon by the defendant (§ 67 of ch. 81) undoubtedly came to be used to guard against a possible interpretation, that if the title was not made to pass to the creditor within thirty days after final j udgment he would ‘ lose his attachments. At the time of the introduction of that phraseology into the statutes, the only mode of levying execution on the fee of real estate was by extent and delivery of seizin, which could all be done within the thirty days. In levying by sale, the title could not pass till the sale was made and the officer’s deed delivered, which could not be till after the thirty days. In such eases it was intended that the attachment should continue longer provided a seizure was made and notice of sale given within thirty-days.

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.