Belfast Savings Bank v. Lancey

93 Me. 422 | Me. | 1900

Wiswell, J.

On February 15, 1875, the Belfast Savings Bank loaned to William K. Lancey the sum of ten thousand dollars, for which Lancey gave to the bank his five promissory notes for two thousand dollars each, thé first payable in six months time and the others respectively at intervals of six months thereafter, with interest payable semi-annually, secured by a mortgage upon real eatate situated in Augusta.

After three of these notes had become due, on November 11, L876, this action was commenced upon the first two notes that matured, and an attachment made thereon, November 13, 1876, of all of the real estate and interest therein which Lancey had in Somerset county. On November 17, 1876, the plaintiff commenced, or attempted to commence, a foreclosure of the mortgage given to secure these five notes, by publishing on that day a notice of foreclosure in a newspaper.

On April 13, 1878, considerably more than four months subsequent to the attachment of his real estate in Somerset county, above referred to, Lancey filed his voluntary petition in bankruptcy in the II. S. District Court for this district; be was subsequently adjudged a bankrupt and an assignee was duly appointed who, on May 21, 1885, in pursuance of a license granted by the District court, sold the real estate attached upon the writ in this suit, subject to the attachment. On June 2, 1879, Lancey was duly granted a discharge by the District court from all debts provable against him in bankruptcy.

William K. Lancey died, — the exact date is not stated, — within one year prior to the April term, 1899, of this court in Waldo county. Letters of administration were duly granted by the probate court in Somerset county, wbicb court had jurisdiction of his estate; and at the January term 1899, of the probate court in that county, the estate of Lancey was duly adjudged and decreed insolvent and commissioners in insolvency appointed.

At the January term 1899, in Waldo county, the plaintiff’s counsel filed a motion setting out the fact of the attachment of real estate upon the writ, specifically describing the different parcels of real estate that were thereby attached, the bankruptcy proceedings above referred to, and asking to have the amount due upon the notes in suit determined and that it might have special judgment therefor and execution against the property attached. By agreement of the parties, the question of. what was the fair market value of the real estate described in the plaintiff’s mortgage, on November 17, 1877, was submitted to the' jury, who found that such value on that day was eleven thousand dollars. The case was then reported to this court to determine the rights of the parties.

The counsel for the defense assigns several reasons why the plaintiff should not have the judgment he asks for. He claims that a foreclosure of the mortgage by publication was commenced on November 17,1876 ; that by operation of law and in pursuance of an agreement to that effect contained in the mortgage, the mortgage became fully foreclosed in one year therefrom; and that the value of the mortgaged premises, as ascertained by the jury, although not sufficient to satisfy the entire mortgage debt at that time, should be applied in payment of the three notes that were due at the time the foreclosure was commenced and in payment of the interest due at that time upon all of the notes: such an application would much more than pay the two notes sued in this action.

This involves the question as to whether the proceedings commenced by the bank on November 17, 1876, for the purpose of foreclosing the mortgage, was sufficient for that purpose. The notice of foreclosure was published in a newspaper that was both printed and published in the county where the mortgaged premises were situated, but the certificate of the register of deeds reads: “Received Nov. 30, 1876, and copied from the Maine Standard, a public newspaper, published weekly at Augusta, Maine;” etc. The statute in force at that time required ,a mortgagee who desired to foreclose his mortgage by publication, to give public notice in a newspaper printed in the county where the premises are situated, if any. This certificate does not state that the newspaper referred to was printed in that county.

This court has in several instances decided that such a certificate was fatally defective. Blake v. Dennett, 49 Maine, 102; Bragdon v. Hatch, 77 Maine, 433; Hollis v. Hollis, 84 Maine, 96. But it is urged in behalf of the defense that these cases are not conclusive because this case differs from those cited in this respect; that here the newspaper was in fact printed in the county; and it is claimed that this fact may be shown, by parol evidence, that the statute does not require any certificate from the register of deeds, but only makes it prima facie evidence of the facts stated.

We do not think it necessary to determine this question, in which others, not parties to this action, and not bound by the decision of the case, are especially interested, the bank having conveyed the mortgaged premises a number of years ago, because, in our opinion, there is another reason why the plaintiff is not entitled to the special judgment he asks for against the property attached.

The plaintiff does not claim that it is entitled to a general judgment against the estate of Lancey. The bankruptcy proceedings already referred to are a bar thereto, but it desires a special judgment and execution thereon against the property attached more than four months prior to the time of the filing of the petition in bankruptcy. This he would have been entitled to, Bowman v. Harding, 56 Maine, 559, Leighton v. Kelsey, 57 Maine, 85, except for the death of Lancey and the decree of insolvency upon his estate.

The only reason why the plaintiff should have a special judgment against the property attached upon the writ is, that it has at the time of such judgment a valid and subsisting attachment of the property, unaffected by any subsequent proceeding. Does the attachment made upon the writ in this case still exist so as to create a valid lien upon the property attached? We think not. By R. S., c. 81, § 68, “ all attachments of real or personal estate are dissolved by final judgment for the defendant; by a decree of insolvency on his estate before a levy or sale on execution;” . etc.

In this case, as we have seen, there has been a decree of insolvency upon the estate of the original defendant, made before judgment; such decree, by the express terms of the statute, dissolves “all attachments” previously made of his real or personal estate.

The plaintiff’s counsel argues with much force that the object of this statute is that in the case of the insolvency of the estate of the deceased person, his whole estate may be used as assets for ratable distribution among all of his creditors, but that under the circumstances of this case, the property attached does not belong to the estate and cannot in any event be taken by the administrator for a proportional distribution among creditors; and that consequently there is no reason why the attachment should be dissolved; and that the legislature could not have intended that the terms of the enactment should apply to the circumstances of this case.

The very plausible and strong reasons given by the counsel why the statute should not apply to a case, like this under consideration, might be considered by the legislature as sufficient to require its modification in some respects by legislative enactment; but the matter is wholly within the province of the law making department of the government. We can not disregard the plain and unequivocal terms of the section referred to. This is especially true when we consider the judicial construction which the statute has already received, and the history of legislative action relative to the subject matter.

A similar statute was in force in Massachusetts when the case of Bullard v. Dame, 7 Pick. 239, was decided in 1828. In that case the real estate attached had been conveyed by the defendant subsequent to the attachment. Pending the action the defendant died and his estate was adjudged insolvent and commissioners in insolvency appointed. The property attached could not be taken by the administrator for general distribution among creditors,' and the reasons why the statute should not be regarded as applicable were as strong in that case as in this; but the court held that according to the terms of the statute the attachment was dissolved by the decree of insolvency.

In Ridlon v. Cressey, 65 Maine, 128, the real estate of the defendant was attached on the writ and was subsequently conveyed by the defendant; before judgment for the plaintiff the defendant died and his estate was later decreed insolvent. The plaintiff, as in this case, sought a special judgment against the real estate attached because of the attachment, because the defendant had no title or interest therein at the time of his death, and the property would not become assets of the estate for distribution among his creditors; but the court decided that, “ the decree of insolvency dissolved the attachment.”

In Grant v. Lynam, 4 Metc. 471, a different but somewhat similar, statute was under consideration, and the court came to a similar conclusion as to its effect. A debtor whose goods were attached, mortgaged them to another creditor, he then applied for the benefit of the insolvent act, and all his estate was thereupon assigned under the statute It was urged in behalf of the existence of the attachment, that the only purpose of dissolving the attachment must have been to let in the general creditors to the proceeds of the attached property; and that, unless the property was so situated that the assignee could obtain it, the reason for dissolving the attachment would not exist. The court, in its opinion, expressed the belief that it could not have been the purpose of the legislature to dissolve the prior attachment of one creditor in order to let in the subsequent mortgage of another creditor, and that it was probably a case that was overlooked by the legislature; but the court held that the attachment was dissolved, saying: “ But yet the words of the statute are positive and explicit, that it shall dissolve the attachment without condition or qualification.”

We have already spoken of the history of legislation upon this subject. It must be considered as throwing considerable light upon the purpose of the legislature.

The legislature of 1875, public laws 1875, c. 39, modified this statute so as to make it precisely as the plaintiff’s counsel thinks it ought to be. The first section of that chapter provided that the portion of the statute, which we have been considering, should be understood and construed to apply to such property as the debtor owned, or in which he had an interest at the time of his death, and which, by the dissolution of such attachments, become assets belonging to his estate, to be distributed among his creditors. The second section of this chapter was as follows: “ When property has been legally attached on a just debt or claim, and the debtor subsequently sells or conveys the same, subject to such attachment, such attachment shall not be dissolved or affected by his death or by a decree of insolvency in the probate court, but judgment may be entered and execution issue in the same form as if the estate was solvent, and may be levied upon the property attached in the same manner as if the debtor were alive.”

The terms of this chapter were so full as to disclose, not only the intention of the legislature, but the reasons, as well, which actuated the passage of the amendment: the first section contained almost an argument in its favor. But the succeeding legislature, by an act c. 143, approved February 23, 1876, some months before the commencement of this suit, repealed c. 39 of the public laws of 1875 without qualification.

We are, therefore, forced to the conclusion that the plaintiff’s attachment was dissolved by the decree of insolvency upon the estate of the original defendant, and that consequently it is not entitled to a special judgment against the property attached.

Case remanded to the court at nisi prius for disposal in accordance with this opinion.