74 Mo. 39 | Mo. | 1881
The only question which we deem it important to decide in this case is, whether an attaching creditor can maintain a suit to redeem land which has been attached, from a mortgage executed by the defendant in the attachment suit. The general rule is, that as an ordinary creditor before judgment and execution has no certain claim upon the property of his debtor, he has no concern with conveyances of any kind affecting such property. Martin v. Michael, 23 Mo. 50; Turner v. Adams, 46 Mo. 95; Pendleton v. Perkins, 49 Mo. 565; Story Eq., § 1023. After the decision of this court in Martin v. Michael, supra, a change was made in the law by the act of January 14th, 1860, which has continued in force ever since, and is now found in section 448, Revised Statutes, whereby any attaching creditor may maintain an action for the purpose of setting aside any fraudulent conveyance, assignment, charge, lien or incumbrance of or upon any property attached in any action instituted by him. This statute, however, is not broad enough to cover the case we are now considering. In the absence of statutory provisions on the subject, the party seeking to redeem from a mortgage must not only have a jus ad rem, but a jus in re. We are aware that it has been held in the case of Chandler v. Dyer, 37 Vt. 345, that an attaching creditor may redeem — but we are not satisfied with the reasoning in that case. If an attaching creditor has such an interest in land as will