69 Wis. 148 | Wis. | 1887
By virtue of the attachment the sheriff levied upon the land in question as the separate “ property of N. II. Virgin, and all his right, title, and interest therein,” February 12, 1884; and this suit in equity was thereupon brought in aid of that attachment. It appears that, nearly five years prior to the time when the attachment was so levied upon the land, N. H. Virgin and wife had conveyed the same to their son, Eugene, by warranty deed, and taken back the throe notes and mortgage in question upon the same land to secure the payment of the purchase money. The court found, in effect, that such conveyance and mortgage were each made in good faith, and with no intent to hinder, delay, or defraud creditors. The plaintiff has not appealed, and such .findings of fact must therefore be taken as verities. Upon such facts we must hold, as a matter of law, that such attachment never became a specific lien upon the particular land in question. Our reasons for such conclusion are sufficiently stated in the case against Mrs. Laughton (ante, p. 138), decided herewith. It is there in effect held that such suit in equity can only be maintained bv- 4 creditor at large after he has acquired such specific lien.
Did the attachment of the land of Eugene as the separate property of liis father give such specific lien upon the notes and mortgage held by the latter? True, the mortgage was a lien upon the same land, but it was a mere incident of the debt, and as such would pass by mere sale and delivery of the notes. The notes and mortgage were personal property, and as such were never seized upon the attachment. A mere levy upon the land of the mortgagor as the separate property of the mortgagee cannot be regarded as an attachment of the notes and mortgage, nor as
But it is urged, in effect, that although, under the findings, the court could not properly set aside the deed and mortgage, and subject the land to the payment of the claim ,as prayed, yet that, as the case was in equity, and the court had taken jurisdiction for one purpose, it properly retained it, and did complete justice between the parties, who were all before it. Assuming that such conclusions of the trial court-were within, the scope of the issues made by the pleadings, which is very doubtful, yet, in order to sustain them, it would be necessary to hold that a creditor at large, with no specific lien upon any property, much less upon land, as prescribed in sec. 3186, R. S., may maintain a bill in equity to reach credits and things in action in the keeping of the debtor; in other words, that such creditor at large, having failed in the object of his suit, was nevertheless entitled to the remedy given by the ordinary creditor’s bill under sec. 3029, R. S., or supplementary proceedings under sec. 3030, B. S., without complying with the statutory conditions of either. Such a ruling would be entirely unwarranted by authority. For reasons in support of this .conclusion, see the opinion in Mrs. Laughton’s case (ante, ,p. 138), decided herewith, and the notes to the section of Pomeroy there cited.
By the Court.— That part of the judgment appealed from is reversed, and the cause is remanded with directions to ■dismiss the complaint.