Hurlbutt v. Currier

38 A. 502 | N.H. | 1894

Section 26 of the insolvency statute (P. S., c. 201), which provides that "The proceedings in insolvency shall dissolve all attachments of the debtor's property made within three months before the beginning thereof," applies to attachments on mesne process under which the lien acquired is merely contingent and provisional upon the recovery of judgment by the plaintiff, and does not apply to absolute liens acquired by a seizure or levy on execution as contended by the defendant.

An execution is final process and the end of the law, and the settled doctrine is that a seizure or levy upon it before the commencement of insolvency or bankruptcy proceedings against the debtor under statutes containing provisions like that in s. 26, although not completed until afterwards, is not dissolved or impaired by the proceedings. In such a case, the possession of the sheriff cannot be disturbed by the assignee, who is only entitled to the residue of the property remaining after the execution has been satisfied. Cushing v. Arnold, 9 Met. 23, 26; Andrews v. Southwick, 13 Met. 535; Hall v. Hoxie, 3 Met. 251; Marshall v. Knox, 16 Wall. 551; Savage v. Best, 3 How. 111; Mollison v. Eaton, 16 Minn. 426, — 10 Am. Rep. 150; Fehley v. Barr, 66 St. 196; Thompson v. Moses, 43 Ga. 383; Doremus v. Walker, 8 Ala. 194, — 42 Am. Dec. 634; 2 Freem. Judg. (4th ed.) 691; Av. H. B. L. 56; Bump B'k'cy (10th ed.) 320; Freem. Ex'ons, s. 207.

The conversion of the property in suit by the defendant was unlawful. If the failure of the plaintiff to advertise and sell it as required by P. S., c. 232, s. 2, rendered its subsequent retention by him invalid as against other creditors of the debtor (Poole v. Symonds, 1 N.H. 289, 295), the debtor himself had no right, title, or interest in the property which entitled him, to its possession at the time of his assignment (Caldwell v. Eaton, 5 Mass. 399, 404); and the defendant, by force of the statute and assignment, took nothing more than the debtor had. He stands in his place, having his rights and his only, except in cases of fraud. Adams v. Lee, 64 N.H. 421, 423. There is here no allegation of fraud or illegality of any kind, other than that arising from the fact that the execution creditor, his attorney, and the plaintiff had reasonable cause to believe the debtor was insolvent at the time the levy was made. For the present purpose this is of no consequence. There is nothing in the insolvency statute, either in its language or object, which prevents a creditor from seasonably enforcing his judgment lien against a debtor who is even known to him to be insolvent. It would be absurd to hold that a party may not enforce a valid lien upon property simply because he has knowledge of the owner's insolvency. A legal right not enforceable by its possessor is unknown to the law of this jurisdiction.

The action can be maintained on the agreed facts.

Case discharged.

All concurred.