28 Vt. 546 | Vt. | 1856
The opinion of the court was delivered by
This is an action of ejectment for land in Barnard.
Previous to the act of 1823, a lien upon real estate was created when the officer simply left a copy of the writ, with his' return thereon, with the town clerk. No other duty was required of the officer by the statute, to create a lien upon the estate. In the case of Huntington v. Cobleigh, 5 Vt. 54, Williams, J., observed, that “previous to the statute of 1823, leaving a copy with the town clerk was the attachment which created the lien, and that which gave notice to all of the incumbrance thereby created.” By the act of 1823, it was made the duty of the officer serving the writ, to cause to be recorded by the town clerk, in a book to be kept for that purpose, the substantial part of the writ, with the return of the officer. Under that act, a lien on real estate, by attachment, was not created by simply lodging a copy of the writ with the return of the officer, in the town clerk’s office, but it was also his duty to cause the same to be recorded, or, at least, to direct the same to be recorded,' and pay the legal fees therefor. Under the previous law all
.But it is insisted that, if that lien existed, it was lost when the officer who served the writ withdrew that copy from the town clerk’s office, and erased from his return thereon the attachment of the real estate, and substituted an attachment of personal property. It appears from the case that, after the attachment had been made, and for the purpose of enabling the defendant to purchase the premises free from any incumbrance of that character, the officer, without the knowledge of the plaintiff, did make that erasure, and withdrew the copy altogether from the office of. the town clerk. This subject involves the inquiry as to the power of the officer over the process, and the property attached, after its service. Until the contrary appears, it is to be presumed that the attachment was made under the directions, and with the assent of the creditor. In the attachment of personal estate, the officer acquires a special property, and the right to its custody and possession. For any injury to it, the right of action is in the officer, as, in any termination of the case, he is accountable for the property either to the creditor or debtor. That special property the officer may release, so as to destroy any lien upon the property created by the attachment. He may permit the possession of the property *to remain with the debtor, in which case it can be held by a subsequent attachment, or a subsequent purchaser, free from any lien or claim of the officer upon it. His right over that property is independent of the creditor or debtor, as, in a given event, he is responsible for it to the debtor, and in another event to the creditor; and that right exists so long as that special property continues in him. But we apprehend a different rule applies in the attachment of real estate. When such an attachment is made, the officer acquires no special property in the land. He is not required or authorized to take the possession of it, nor in any event is he accountable for the property, or for its rents, incomes, or profits. This agency and authority is terminated whenever his duties are performed, for which the process was put into his hands. The lien created by the attachment, whatever may be its character, is in the creditor, and he only can release or discharge it. We
The declarations of Henry, the officer by whom the attachment was made, we think were improperly admitted as evidence to the jury. The'object of that testimony was to show that the attachment of the real estate was made by him, without any directions to that effect, by the plaintiff. Whether those declarations would have been admissible for that purpose, if they had been made at the time of the attachment, and when the copy of the writ was left with the town clerk, we are not called upon to decide. But, as they were made some time afterwards, and upon another occasion, they cannot be treated as a part of that transaction, and are not admissible to affect, in any way, the lien or title of the plaintiff to these premises. This view of the subject renders it unnecessary to examine other questions which were raised in the case.
The result is, that the judgment of thé county court must be reversed, and the case remanded.