26 Haw. 342 | Haw. | 1922
Lead Opinion
OPINION OF THE COURT BY
This is an action in ejectment brought by the plaintiff against the defendants to recover the possession of Lot 37 as designated on registered map No. 94 of the tract of land known as the “Mendonca Lots,” situated at Oloku near Lilika street in Honolulu, and more particularly described in the declaration. Both the plaintiff and the defendants claim title under John Mattos, Jr. Trial by a jury having been waived the cause was heard by the court without the intervention of a jury and resulted in a decision and judgment in favor of the defendants. The plaintiff brings exceptions.
Counsel for the defendants contend that all of the exceptions which are sufficiently definite to authorize this court to consider them have been abandoned. We hold that exceptions one to sixteen, inclusive, relative to the admission of evidence, for the failure of plaintiff to argue them, have been abandoned. (Stewart v. Spalding, 26 Haw. 162; Estate of Afong, 26 Haw. 147.) We also think that the remaining exceptions, numbers seventeen and eighteen, to the decision and judgment might properly be regarded as too general to require us to consider them but we have decided to dispose of the questions argued under them.
There is no controversy as to the facts. It appears
Under this state of facts it is the contention of the plaintiff that the only question presented is one of statutory construction, namely, whether the levy of an attachment is complete when a copy of the writ with the officer’s certificate is filed with the registrar of conveyances. On the other hand the defendants contend that the assignment and transfer of the agreement of sale and purchase .by Mattos to the society Avas in effect a deed and since the evidence shows, and the circuit judge found, that it was executed and delivered on August 21 that Mattos at the
The sections of the statute which we deem it necessary to consider are as follows:
“Sec. 2781. Issued when. The plaintiff, in any action upon a contract, express or implied, may, at the time of commencing such action, or at any time afterward before judgment, have the property of the defendant, or that of any one or more of several defendants, which is not exempt from execution, attached in the manner hereinafter prescribed, as security for the satisfaction of such judgment as he may recover. * ⅜ ⅜ ”
“Sec. 2788. Writ, how executed. The sheriff to whom the writ is directed and delivered, must execute the same without delay as follows:
“1. Real property or any interest therein shall be attached by filing in the office in which conveyances of the real property attached should be recorded, a copy of the writ of attachment, with the officer’s certificate indorsed or affixed, that by virtue of the original 'writ of which such copy is a true copy, he has attached such real estate, or all of the interest of the defendant therein, describing the same with convenient certainty as the property of the defendant, naming him, in such writ. ⅞ * * ”
“Sec. 2358. In case of attachment, etc., of real property. In all cases of attachment, sequestration or injunction of real property, the officer serving the writ shall, in addition to personal delivery of a copy thereof to the defendant, post upon the premises a copy of the process, and a notice of the day and hour when attached, sequestered or enjoined, and shall also give notice thereof in a newspaper or newspapers suitable for the advertisement*347 of judicial proceedings. All after-leases, mortgages, sales, devises, assignments, trusts or other conveyances of said property, until the dissolution of the process, shall be void in law as against the plaintiff in such cases.”
From a reading of section 2781 it will be seen that the object of an attachment is to provide security for the satisfaction of such judgment as may afterwards be recovered in the case in which the attachment is issued. Section 2788 provides how an attachment shall be executed by the sheriff and is to the effect that real property shall be attached by filing in the office in which conveyances of real property should be recorded (in this jurisdiction the office of the registrar of conveyances) a copy of the writ with the proper certificate of the sheriff indorsed thereon. In the chapter in which these two sections of the statute appear no mention is made of any other action by the sheriff being necessary in the levy of an attachment on real estate. The language is that “real property or any interest therein shall be attached by filing,” etc. We hold therefore that the levy of the attachment was complete when the sheriff filed a copy of the writ with his certificate indorsed thereon in the office of the registrar of conveyances and since this was done at 12:25 o’clock p. m. on August 23, 1917, the defendants’ recorded deed, which was admittedly not executed until 2:15 o’clock p. m. on that day and filed for record at 4:06 o’clock p. m., Avas after, instead of prior to, the levy of the attachment. We are supported in this holding not only by the wording of-our statute but also by the decisions from other jurisdictions dealing with a similar situation. (Schoonover v. Osborne, 111 Ia. 140, 82 N. W. 505, 82 Am. St. Rep. 496, and cases cited.)
We think that the provisions of section 2358 It. L. 1915, requiring notice to be served on the defendant in the action, can have no other purpose than that of better enabling him to guard any interests he may have in the
We come now to a consideration of the effect of the unrecorded instruments which the defendants produced as well as the admitted possession of the lot in question by the defendants at .the time of the levy of the attachment. In 2 R. C. L. 860, 861, it is said: “In the absence of statutory regulation it is the rule that an unrecorded deed or mortgage is effectual as against a subsequent attachment of the land as the property of the grantor or mortgagor. * ⅞ * In many jurisdictions statutes are in force that in effect place an attaching creditor in the same position as a purchaser. In those jurisdictions the broad common law rule just stated has been limited and it has been declared that a creditor having actual knowledge of a previous unregistered conveyance of land by his debtor
Our conclusion is that tbe unrecorded instruments produced by tbe defendants bad tbe effect of transferring to tbe defendants all tbe right, title and interest which John Mattos, Jr., bad in tbe lot in question and that it was incumbent upon' tbe plaintiff to make reasonable inquiry as to tbe rights, of tbe persons in possession and having failed to do so be cannot now assert that be bad no notice of such rights at tbe time be levied bis attachment.
Tbe exceptions should therefore be overruled and it is so ordered.
Concurrence Opinion
CONCURRING OPINION OF
I concur in tbe conclusion reached, namely, that tbe exceptions should be overruled.