22 Gratt. 205 | Va. | 1872
This is an appeal from a decree of the Circuit court of Smyth county, and involves a question of priority between a foreign attachment creditor and an assignee in bankruptcy of a common debtor, in regard to certain real estate of the debtor lying in said county. The question depends upon the priority of time, when the respective liens or claims of the conflicting claimants attached to the subject. The attachment creditor claims a lien from the time of filing his bill, to wit: the 20th day of February 1867; the assignee in bankruptcy claims alien from the time of the filing of the petition in bankruptcy, to Wit: the 2d day of March 1868, or at least from the time of the adjudication of the bankruptcy, to wit: the 28th day of March 1868. If the claim of the former be well founded, it is of course paramount to that of the latter. Prior in tempore est prior in jure. The assignee' takes the estate of the bankrupt just as the bankrupt held it, subject to all liens and equities which were good against the bankrupt at the time he became such. James on Bankruptcy, and cases cited in notes, pp. 36, 37 and 44. He stands in the shoes of the bank
There is no contest in this case as to the fact that the common debtor filed his petition in bankruptcy on the 2d day of March 1868, and was adjudged a bankrupt on the 28th day of March 1868. Nor does it appear that there is any contest as to the fact, that the debt claimed by the attaching creditor was due by the common debtor at the time of the institution .of the suit, and still remains unpaid. Nor as to the facts, that the debtor at that time was a non-resident of the State of Virginia, that he owned the real estate on which the attachment lien is claimed, that the said real estate is situated in the said county of Smyth, in this State, and that these facts were all averred in the bill, which was filed in this suit on the 20th day of February 1867. And all these facts are fully sustained by the pleadings and proofs in the cause. The foreign attachment creditor had, undoubtedly, a good cause for a foreign attachment in chancery at the time of the filing of this bill, and the controversy in this cause seems to be narrowed down to this : Whether he so prepai’ed his bill, and so proceeded upon it, as to make him a foreign attachment creditor, and to give him the benefit of a foreign attachment lien from the time of the filing of his bill ?
He had a good case for a foreign attachment suit in chancery. Has he sufficiently statedjt in his bill ? And has he done what was necessary to give effect to his attachment lien ? If he has not, he has certainly been very unfortunate.
He had a good case for a foreign attachment suit, because the debtor resided “without the jurisdiction of
Can this suit be regarded as a foreign attachment suit ? Are the averments of the bill sufficient for that purpose ? Have the proceedings in the suit been such as to give effect to it as an attachment suit ? These are the questions we now have to solve. ’
The complainant in his bill, 1st, Sets out the claim against the debtor, Frank A. Sanders, showing that it amounts to $12,271.49, for which a decree had been rendered in the State of Alabama, of which decree a copy is filed with the bill; 2d, Charges, that the debtor has large and valuable real estate in Virginia, and within the jurisdiction of the court, to subject which to sale for the payment of the said debt is the declared object of the bill, and the said real estate is particularly described in the bill as to quantity, title, and otherwise; 3d, Charges, that the debtor is a non-resident of the State ; 4th, Makes the proper persons defendants to the bill 5th, Prays for a sale of the said real estate for the payment of the said debt; and 6th, Prays for general relief.
How this is certainly a sufficient bill to give effect to-the suit as a foreign attachment suit in chancery. For although the suit is not called an attachment suit, by name, in the bill, and although the bill does not, in terms, pray that the land may be attached for the payment of the claim; yet the bill contains all the necessary and proper allegations for such a suit, and prays for suit
Has there been any such omission in the proceedings, then? is the question.
If there has been, it consists in the omission of such an affidavit as the statute requires to be made in such cases, or in the omission of an endorsement on the subpoena, describing the real estate intended to be attached.
As to the affidavit, the act of 1819, 1 R. C., p. 474, § 1, only required an affidavit that the debtor”was out of the country, or that, upon inquiry at his usual place of abode, he could not be found, so as to be served with process; upon which affidavit the court was authorized to make an order, and require security, if it should appear necessary, to restrain the defendants in this country from paying, conveying away, or secreting the debts by them owing to, or the effects in their hands of such absent debtor or defendant. An affidavit of the non-residence of the debtor was made in this case on the 6th day of May 1867, about ten months before his petition in bankruptcy was filed, on which affidavit an order of publication against him was made, This .affidavit would have been a full compliance with the requisition of that act. But the Code of 1849, chapter 151, made a material change of the attachment law; and section 11, which relates to attachments in equity, provides that “there may be an affidavit according to the nature of the case, conforming, as near as its nature will admit, to what is specified in previous sections.” Section 1 of the same chapter is the section here chiefly referred to, and
But even if any other affidavit than that of non-residence of the debtor were necessary in this case, it is well settled that the affidavit, required by the statute to authorize a court to sue out an attachment against the estate or effects of an absent debtor, may be made, either before or after the bill is filed. O'Brien, &c. v. Stephens, 11 Gratt. 610. See also Moore v. Holt, 10 Id. 284. Indeed, it is expressly declared by the statute, in the very section which gives the remedy in this ease, to wit: section 11 aforesaid, that “ such affidavit may be, at the time of, or after, the institution of the suit.” The decree appealed from is interlocutory. "What is there to prevent the affidavit from being now made, if any other
As to the omission of an endorsement on the subpoena, •describing the real estate intended to be attached. The 7th section of chapter 151, of the Code of 1860, p. 647, provides, that (e every such attachment, (except where it is sued out specially against specified property,) may be levied upon any estate, real and personal, of the defendant, or so much thereof as is sufficient to pay the amount for which it issues. It shall be sufficiently levied in every case by a service of a copy of such attachment, on such persons as may be designated by the plaintiff in writing, or be known to the officer to be in possession of effects of, or to be indebted to, the defendant; and as to real estate, by such estate being mentioned and described by endorsement on such attachment” And the 12th section, Id. p. 648, provides, that “ the plaintiff shall have a lien from the time of the levying of such attachment, or serving a copy thereof, as aforesaid, upon the personal property, choses in action, and other securities of the defendant against whom the claim is, in the hands of or due from any such garnishee on whom it is so served, and on any real estate mentioned in an endorsement on the attachment or subpoena, from the sueing out of the same”
These provisions were intended to apply, mainly if not entirely, to the ordinary case of an attachment which is ancillary to an action at law for a legal demand, or to a suit in equity for an equitable demand, in which nothing is said in the pleadings about any attachment of any property. In order to constitute an attachment lien upon any property there must be a claim in some form to subject the property to the payment of the debt demanded in the action or suit. If there be no such claim in the pleadings in the action or suit itself, then an attachment must be issued, which may be levied upon any estate, real or personal, of the defendant, or so much thereof as is sufficient to pay the amount for which it
Where the non-resident debtor is the only defendant in the case, the order of publication would seem to be the only necessary process. Suppose the non-resident defendant and the home defendants had all filed their answers in this ease, on condition that the attachment should not thereby be discharged, and had admitted the truth of all the allegations of the bill, would any endorsement then have been necessary ? Would not the plaintiff have been entitled to a decree according to the prayer of his bill? Suppose, instead of filing their answers and admitting the allegations of the bill, the defendants had suffered the bill to be taken for confessed, as was the case here, would any endorsement then have been necessary, and would not the plaintiff have been entitled to such a decree ? I suppose there can be no doubt but that he would have been so entitled in either of the cases above supposed, if no other persons were interested in the subject than the original parties to the suit. But suppose that, after the answers admitting the allegations of the bill are filed, or after it is taken for confessed, the non-resident debtor becomes a bankrupt before any decree is made for the sale of the land charged by the bill with liability for the debt, will the assignee in bankruptcy stand on any higher ground than the debtor himself? Will he not stand in the shoes of the bankrupt in regard to the suit ? And will not the plaintiff be entitled to precisely the same decree against him that he would have been entitled to against the debtor himself, if he had not become a bankrupt? Upon these questions
In this case, the plain tiff, in his bill, fully and plainly stated a case which, if true, entitled him to a decree for the sale of the land in question for the payment of the debt due to him by his non-resident debtor. This bill was filed on the 20th day of February 1867, before the bankrupt law was passed, and more than a year before the non-resident debtor filed his petition in bankruptcy. There was an order of publication entered in the cáse on the 6th day of May 1867, against the non-resident dedefendants, including the debtor, Frank A. Sanders, upon an affidavit made in due form, which order was duly posted and published, the publication ending on the '81st day of May 1867, nearly ten months before the petition in bankruptcy was filed. The said order stated, that “the object of this suit is, to subject the interest of Frank A. Sanders in the land now in the possession of James B. Sanders and John L. Sanders, known as the River tract of their father’s estate, and seventy-four acres of the Sulphur Spring’s tract, to satisfy a debt of $12,271.49, ascertained by decree of the District court of chancery for the northern district of Alabama, and filed in the cause aforesaid in said Circuit court of Smyth county. ” The bill was even more full and specific, indeed much more so, than the said order, in the■ description of the land and the debt. The subpoena was returned executed on John L. Sanders, the only defendant who resided in the State, and who was charged in the bill to be in possession of the land, on the 22d day of February
Such was and continued to be the state of the case until and on the 2d day of March 1868, when the nonresident debtor, Frank A. Sanders, filed his petition in bankruptcy; and until and on the 28th day of March 1868, when he was adjudicated a bankrupt; and until and on the 3d day of June 1868, when all the estate of the bankrupt was conveyed to the appellant, William Y. Oirode, as assignee in bankruptcy. On the 26th day of August 1868, the cause came on to be heard, upon the bill taken for confessed as to all the defendants, and upon the exhibits, when the court, considering that the interest of the said Frank A. Sanders in the real estate in the bill mentioned, was liable and ought to be subjected to sale for the satisfaction of the debt due to the plaintiff and in the bill mentioned, therefore decreed that John P. Sheffey, who was appointed a commissioner for the purpose, should sell the said real estate, or so much as might be necessary, in the manner and on the terms in said decree mentioned, and report his proceedings to the court. Before any sale was made under the said decree, it seems that the said assignee in bankruptcy asserted a claim to the said real estate, and on the 18th day of November 1868, an agreement in writing was entered into between the said assignee and the plaintiff in the suit, whereby it was agreed, that the said sale should not he further delayed or suspended, but should be made by the commissioner appointed by the said decree; that the proceeds thereof should be paid into court, to await the determination and final decree of the said court; that the said assignee should become, by virtue of the filing of the said agreement, a party to the said suit, without process; and that, upon the final hearing, the question of the validity of the lien claimed by said plaintiff by attachment, as against the claims of said assignee on behalf of the general creditors of said bankrupt, within.
On the 19th day of November 1869, the cause came on to be heard on the papers formerly read, the ariswer of the said assignee in bankruptcy, and replication thereto, and exhibits filed, and the written agreement aforesaid; on consideration whereof, the court was of opinion, that the plaintiff was entitled, as against the said assignee, to the proceeds of the sale of the land of the said Frank A. Sanders, sold by commissioner Sheffey as aforesaid, and decreed accordingly. From that decree the said assignee applied for and obtained the appeal we are now considering.
I am of opinion, that from the time of the institution
I am therefore of opinion that the said decree ought to be'affirmed.
Decree arrirmed.