Aiken v. Medex, 15 Me. 157

Aiken v. Medex

15 Me. 157 | Me. | 1838

The opinion of the Court, after advisement, was drawn up by

Weston C. J.

The statute of 1829, c. 431, being an additional act respecting the attachment of property, first gave to a creditor the right to attach such an interest, as Sullivan had in relation Jo the estate in controversy, when the plaintiffs caused their writ to be served, in the action against him. The statute has pointed put a special mode, to render the attachment effectual, by directing a sale of the interest attached, on the execution, in the same manner required by law for the sale of an equity of redemption on execution; and by providing a remedy for the purchaser, by a bill in equity.

The statute mode was not pursued, upon the ground, that if it had been, it would have been defeated, by the course of proceedings, subsequent to the attachment. That is assuming more, than has yet been decided. If the course required by the statute, had been pursued, the right thus acquired would have been entitled to legal protection, and would have been held available, unless the law should be found to be so radically defective, that it could not *159be carried into effect in such a case. Justice might be done, by making the purchaser under the debtor, or under the obligor in the bond, a party to the bill in equity, and by decreeing, that he should convey the title to the purchaser under the execution, upon receiving, if he had paid it, the sum due on the bond, at the time of the attachment. But upon this point, we reserve ourselves, until such a case shall be legally presented to our consideration.

It is however our opinion, that the plainLifIs, not having pursued the requirements of the statute, have lost the lien, created by their attachment. If the debtor ever had such a fee in the land, as could have been attached, or taken on execution, by a creditor, he had parted with it long prior to their levy. According to the case of Chickering v. Lovejoy & al., 13 Mass. R. 51, he never had such a seizin, as could have been subject to attachment. But however that may be, there was no attachment upon the land, or at least none which was legally continued, at the time of the transit of the fee, through him to the defendant. The attachment of the interest of the debtor, under the bond, was dissolved, by a failure on the part of the plaintiffs, to make it effectual, in the mode prescribed by the statute, by which it was authorized.

Upon the facts agreed, we are of opinion, that the respondent is entitled to judgment.