Columbia Bank v. Jacobs

| Mich. | Jul 14, 1862

Manning J.:

The bill is to remove a cloud on the title of Cyrus H. Jacobs to lands attached as his by complainant, before proceeding to sell the same on execution in the attachment suit — -the alleged cloud consisting in a claim the defendant Rebecca S. Jacobs, wife of the said Cyrus II. Jacobs, has to the land in question, under a conveyance thereof to her by her husband, in nature of a post-nuptial settlement, or separate provision made for her by her husband. To entitle complainant to the relief asked, two things must be established: 1st. An attachable interest in the land in question in Cyrus H. Jacobs previous to tbe conveyance to his wife; and 2d. The invalidity of tbe post.-nuptial conveyance, for tbe purpose stated, in a court of equity.

It appears from tbe pleadings and proofs tbat tbe lands attached .were conveyed by George B. Russell and wife to Cyrus H. Jacobs, as security for $10,000 Russell loaned of Jacobs — Russell at tbe time giving Jacobs bis bond for tbe $10,000, and Jacobs executing and delivering to Russell a. writing stating tbat tbe conveyance was given as security for tbe loan, and promising to re - convey tbe land on tbe payment of tbe $10,000 and interest. The conveyance and defeasance taken together, and construed as one instrument, are a mortgage, and nothing more. This is conceded — and tbe first of tbe two questions to be considered involves tbe effect to be given to an unregistered defeasance, where tbe property has. been attached without actual notice to tbe attaching creditor of tbe defeasance.

Tbe conveyance from Russell to Jacobs was recorded, but tbe defeasance was not; and tbe Bank insists it bad no knowledge of the existence of tbe defeasance when tbe land was attached, and tbat it therefore has a lien on tbe land for the payment of its debt, discharged of tbe defear sanee, and of all rights growing up under it.

“When a deed purports to be an absolute conveyance in terms, but is made, or intended to be made defeasible by force of a deed of defeasance, or other instrument for that purpose, tbe original conveyance shall not be thereby defeated or affected, as against any person other than tbe maker of tbe defeasance, or bis heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance shall have been recorded in tbe registry of deeds of tbe county where the lands lie.’’ — Comp. L. § 2751.

This section must be construed with tbe other sections in tbe same chapter, providing for the registry of conveyances of real estate, and must be understood as declaring all such deeds of defeasance or other instruments void, when not recorded, against purchasers for a valuable consideration without actual notice of their existence. The registry law is for the protection of purchasers in g'ood faith for a valuable consideration, against prior secret conveyances. It makes no mention of attaching or judgment execution creditors, who must stand on their common law or statutory rights, independent of the registry statute. They are not purchasers within its meaning, and can not claim the benefit of its provisions until the property attached or levied on has been sold, in pursuance of law, and has been purchased in by them. Then, and not' before, they are purchasers within the statute, and entitled to all its benefits.

The attachment law provides that “Real estate shal be bound, and the attachment shall be a lien thereon, from the time when it was attached, if a certified copy of the attachment, with a description of such real estate, shall be deposited in the office of the register of deeds in the county where the same is situated, within three days after such real estate j was. attached, otherwise such attachment shall be a lien thereon only from the time when such certified copy shall be so deposited.” — Comp. L. § 4751.

This section, when it has been complied with, only gives the attaching creditor a lien on the land attached. Unlike the registry law, it in no circumstances gives such lien a priority over pre-existing rights, as its object is not like the registry law to protect purchasers, but to secure the property attached to satisfy any judgment the party suing out the attachment may afterwards obtain against the defendant in attachment. It is a lien to the same extent as a levy on the land with an execution would be a lien, provided a judgment is obtained in the attachment suit, and a bond has not been given for the release of the property, as provided for in the other sections of the act — §§ 4754, 4755, 4756. A lien to this extent was necessary to .give effect to the attachment proceedings, which otherwise might be rendered nugatory by- a sale of the property before judgment by the defendant in attachment. While the statute takes from the debtor his right to sell, or make other disposition of the property to the jnejudice of the attaching creditor, it in no way interferes with the previously acquired rights of third persons.

Jacobs’ interest in the land attached, as shown by the defeasance, was that of a mortgagee, which is not attachable ; and complainant not being a purchaser for a valuable consideration without notice of the defeasance, is not in a position to question the validity of the transfer of the mortgage interest by Jacobs to his wife. It is unnecessary, therefore, for us to go into this part of the case, and improper that we should do so, if the rights of Mrs. Jacobs are to be drawn in question without the proper parties before us.

The decreS of the Court below dismissing the bill is affirmed, with costs.

■Martin Ch. J. and Campbell J. concurred. Christiancy J. was absent,