Kelsey v. Remer

43 Conn. 129 | Conn. | 1875

Park, C. J.

The defendant contends that an attachment of real estate creates no incumbrance upon'the land, within the meaning of the covenant against incumbrances, until judgment has been rendered in favor of the attaching creditor, and the land has been set off on execution to satisfy the judgment. This claim is based upon the uncertainty which exists in such cases, whether the attachment will ever be followed by the levy of an execution upon the land. But there is no more uncertainty in such cases in this respect than in many cases of mortgages, whether the property will be eventually foreclosed and the land taken for the debt, especially in those cases where mortgages are made to secure parties against future liabilities depending upon many contingencies. It would seem to follow, therefore, that if the claim is sound in respect to attachments, it ought to be sound in respect to such mortgages, and yet the latter are every where held to create incumbrances. But in this case the plaintiff did not redeem the land from the attachment till after judgment had been rendered in the suit in which it had been made. At that time it was morally certain that the land would be taken to satisfy the judgment, as there was no personal property on which an execution could be levied. It is true an attempt had been made to levy an execution upon the land, which had failed, and there was some uncertainty whether it would be renewed during the existence of the lien created by the attachment, owing to the ignorance of the party that the execution had not been duly levied. But this fact cannot in any way affect the case. The defendant had no right to presume that the defect in the levy would not be discovered in time for the levy of another execution. The law never creates a right in a party which is dependent upon the ignorance of another party in regard to his rights. It should be taken for granted that the party would discover that his levy was abortive, and would cause another to be made during the existence of the attachment lien.

It is clear that if the judgment in this case did not constitute the attachment an incumbrance upon the property, then an incumbrance, by our law, never can be created by an attachment. For nothing remained to be done but the levy of an execution, and the levy of an execution, by our law in a case like this, transfers to the execution creditor the immediate and absolute title of the execution debtor in the land set off upon the execution.

In some states the levy of an execution operates like a decree of foreclosure in the case of a mortgage. The execution debtor has the right during a certain period of time to redeem the land, and during such time the levy of course continues an incumbrance upon the land. But it is not so in this state in cases of resident debtors. They have no right of redemption after the levy of the execution, and consequently the levy creates no incumbrance upon the land, for it transfers an immediate and absolute title. Rawle on Covenants for Title, p. 94, says, that “every right to or interest in land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance, is an incumbrance.” An incumbrance therefore must be something less than the entire title which the debtor has to the property.

We are satisfied that the attachment in this case created an incumbrance upon the land, and the authorities are in accordance with this view. In Harlow v. Thomas, 15 Pick., 69, the court recognize an attachment as an incumbrance upon land. In Norton v. Babcock, 2 Met., 510, the court hold that a second attachment of all a debtor’s right, title and interest in land, is an incumbrance on the land from the time it is made. It will be found upon examination that this case is exactly in point, as is also that of Johnson v. Collins, 116 Mass., 392. These cases were actions for breach of covenants against incumbrances, and the breach consisted in the fact that attachments were resting upon the lands at the time they were conveyed. We might cite other authorities upon this subject, but these are sufficient.

It appears in the.case that the plaintiff conducted with reasonable prudence and care in regard to the interests of the defendant in the matter; that he had abundant cause for believing, and did believe, that the land would be taken to satisfy the judgment that had been rendered in favor of the attaching creditor, unless he paid and satisfied the same; and consequently, after he had made fruitless efforts to obtain instructions from the defendant in regard to the course which he desired him to pursue in the matter, he, in good faith, paid and satisfied the judgment, in order to free the land from the lien created by the attachment. In such circumstances we think the amount paid should he the measure of damages, no claim being made that it was greater than the value of the land attached. It was so held in the case of Norton v. Babcock, supra, in a similar case, and we think correctly.

We think in cases where judgment has been rendered in the suit in favor of the attaching creditor, and the owner of the land has conducted in good faith towards his covenantor in paying the amount of the judgment in order to free his land from the lien created by the attachment, the amount of the judgment should be the measure of damages, if the amount is less than the value of the land attached; but if greater than such value, then the value of the land attached should be the measure of damages.

We advise judgment for the plaintiff.

In this opinion the other judges concurred.