48 Vt. 602 | Vt. | 1876
The opinion of the court was delivered by
The right to take property by attachment on mesne processes given by statute. It did not exist at common law. To justify such taking, the provisions of the statute giving the right, must be complied with. Until the statute conferred the right upon a creditor to attach the reversionary interest of a lessor in personal property in the possession of the lessee, no valid attachment thereof could be made. Smith v. Niles, 20 Vt. 315. Now that the statute (Gen. Sts. c. 33, ss. 31, 32,) has conferred the right of attaching such property, to create a valid attachment, the creditor must pursue the provisions of the statute. He cannot, where the lease is valid, justify the removal of the property from the possession of the lessee. By the lease, the lessee has acquired the right to such possession. That right has passed from the lessor by the terms of the lease. The creditor can only acquire by attachment of property leased, the right thereto which
The defendants not being able, on the facts found, to justify the taking of the property by reason of the attachment thereof, the question arises whether the defendant Belknap had such a lien on the property taken that he can justify the taking thereof under the deeds of March 16, 1872. The decision of this question involves the construction of the language used in the mortgage deed, when applied to the subject-matter of said deed so far as it relates to such lien. The defendant Belknap conveyed by deed to the lessor an undivided half of the farm, and an undivided half of part of the personal property leased to the plaintiff. All of the personal property taken by the defendants from the plaintiff, was the personal property, the undivided half of which was so conveyed, or the issue of such property. The lessor, on the same day, reconveyed to defendant Belknap, by a mortgage deed, the same undivided half of the farm and personal property, as security for the payment of the purchase money. In the description of the property conveyed by the mortgage, is enumerated the personal property conveyed by the deed to the lessor, with the condition, or provision, that when the lessor shall pay $800 and interest, the defendant Belknap shall release his lien on the live stock, and that the payment of that sum shall operate ás a release of the -live stock. The whole purchase money was divided into notes of $800 each, one of which matured yearly. All of the notes were secured by the mortgage. It is found that before the defendants took the property in suit, the lessor had paid the $800 note first falling due, and.the interest thereon, and the defendant Belknap surrendered the same. It is now contended that by interest, used in connection with the payment of $800, is meant the interest on the' whole purchase money, and
Judgment reversed, and cause remanded.