51 P. 727 | Or. | 1897
after making the foregoing statement, delivered the opinion of the court.
The court does not assign any special reason for its deduction that plaintiff’s lien is superior to the liens of the various defendants, etc., but we infer the conclusion was drawn from the finding of fact that “No certificate of attachment was filed by the said sheriff in the office of the recorder of conveyances or of the clerk of the county court in said county.” Section 151, Hill’s Ann. Laws of Oregon, so far as necessary to an understanding of the question, provides that “If real property be attached, the sheriff shall make a certificate containing the title of the cause, the names of the parties, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff, and the date thereof.- Within ten days from the date of the attachment, the sheriff shall deliver such certificate to the county clerk of the county in which such real property is situated, who shall file the same in his office, and record it in a book to be kept for that purpose. When such certificate is so filed for record, the lien in favor of the plaintiff shall attach to the real prop
The point insisted upon by the latter proceeds upon the theory that an attachment of real property, when perfected, becomes a lien thereon, and that the words “ other liens,” as used in the section relied upon, indicate that the certificate of attachment should have been delivered to the recorder of conveyances of said county, and recorded in a book kept by him for that purpose, and that, Hartman having failed to comply with this requirement, no lien ever attached to the premises in question. It becomes necessary to ascertain, if possible, the legislative intent, as manifested by the adoption of the words “other liens,” as used in the language above quoted. One of the rules of statutory construction is predicated upon the maxim, Ejusdem
It is contended by counsel for respondent that the attachment of sufficient personal property of Seid Back to satisfy Hartman’s demand was, as to his client, a payment of any judgment that creditor might obtain; that the redelivery bond was a direct obligation to pay such judgment, and operated to discharge the attachment; and that equity, in any event, should compel Jung Sam, as the assignee of Hartman, to exhaust all other security
Before judgment was obtained in the Hartman action, however, Seid Back had disposed of all the goods so attached, and had become (so it is alleged) insolvent, thereby rendering the sureties liable on the redelivery bond; but this did not authorize the sheriff to levy on their property until an action for breach of the condition of their undertaking had been prosecuted to judgment; for, the redelivery bond being ancillary only, the sureties by signing the same did not become parties to the Hartman judgment, and .in an action instituted against them upon the undertaking, it would be a valid defense that the property for which the undertaking was given did not, at the execution of the writ of attachment, belong to the defendant against whom it was issued: Hill’s Ann. Laws, §155. It is true that this court, in the case of Hartman v. Back, found that the defendant, as principal, and Chin Chong
Jung Sam having a judgment against Seid Back and William Dunbar and the sureties on the undertaking on appeal and for a stay of proceedings,, and a lien on two- tracts of real property as security therefor, and Dickson having a decree against. Seid Back and a lien on one of said tracts only, will a court of equity marshal the securities, and compel Jung Sam to apply the proceeds of the real property upon which Dickson has no lien,, and enjoin the judgment creditor from selling upon execution the premises so mortgaged to plaintiff,, until such application is made? “The general prin
“A court of equity,” says Henderson, J., in Jones v. Zollicoffer, 11 Am. Dec. 795, “will restrain a person in the capricious exercise of his rights; for beneyolence becomes a duty enforced by courts of justice, when its exercise is in no way prejudicial to the party, and a want of it is injurious to another. Thus, when a person may get satisfaction out of either of two funds, and another can
It does not appear that Jung Sam was actuated by any motive that would cause a court to enjoin him from enforcing the remedy given by statute for the collection of his judgment, nor that Seid Back furnished the means that enabled him to obtain from Hartman an assignment of the judgment; and for these reasons the injunction must be dissolved. The principle of marshaling securities can have no application to the remedy against a surety, so long as the principal has property out of whi®li the judgment, for the payment of which the surety is liable, can be satisfied. Robinson, J., in Re Assignment of Hobson, 81 Iowa, 392 (11 L. R. A. 255, 46 N. W. 1095), in discussing this question, says: “In the absence of some special equity, it is not applicable to a case where one of the funds is the property of a surety. If- a surety be compelled to pay the debt of his principal, he becomes his creditor, by virtue of the payment, with the right of subrogation. In this case, appellant’s equities are not superior to the rights of the sureties, and the principal will not be required to exhaust their property before proceeding against the property of the principal debtor.” In the case at bar, Jung Sam has a prior lien, and if Dickson would seek to protect his rights and avail himself of this security, so as to enforce the lien against the property of Seid Back, which is not embraced in his mortgage, it is incumbent upon plaintiff to
Modified.