180 P. 908 | Mont. | 1919
delivered the opinion of the court.
Prank M. Andrus and wife, of Dillon, Beaverhead 'county,
This appeal is from an order made by the court below in a proceeding supplemental to execution on December 2, 1916, directing that the judgment and execution above referred to be satisfied and discharged out of a balance of $1,500 held by the bank, being part of the last installment paid under the escrow agreement by Flora Craver Armstrong.
The contention of appellants is that it was error on the part of the court below to hold that at the time of the levy of the writ of attachment the defendant Frank M. Andrus had an attachable interest in the property involved in the escrow agreement, and requiring satisfaction of that judgment out of the fund still in the hands of the bank under that agreement.
The respondent insists that under the escrow agreement the title to the realty remained in Andrus until the payments were complete and the deed delivered to the grantee therein, and that the attachment, served according to the requirements of the statute, fixed itself upon the title and created a lien in favor of the attaching plaintiff.
Section 6661 of the Revised Codes authorizes the issue and levy of writs of attachment in cases such as these; section 6662, subdivisions 1 and 2 as amended (Laws 1911, Chap. 85, p. 153), prescribes the manner of the levy of the writ and to what kind of property it applies. Section 6687 says that all liens by attachment accrue at the time the property of the defendant shall be attached by the officer charged with the execution of the writ. In Holter Hardware Co. v. Ontario Min. Co., 24 Mont. 184, 193, 61 Pac. 3, 6, this court said: ‘ ‘ The levy of the writ of attachment created the lien. The property was thereby seized and held. *= s # An attachment having been levied within the life of
The ultimate question for decision, then, is: Did the title pass
Appellants contend that under section 6854, Revised Codes, the court below was without jurisdiction to make the order appealed from. In the view we take of the matter, the order of the court below was justified under section 6853, and section 6854 has no application to the present proceeding.
The order is affirmed.
Affirmed.