139 Mich. 176 | Mich. | 1905
(after stating the facts). If the reason given by the court below for its decision is sound, there is no occasion to discuss the other questions raised by the record. Complainant contends that the abandonment is largely a question of intent; that complainant’s attorney in the suit at law testified, that, in ordering the execution returned and the levy discharged, he did not intend to release the lien of the attachment. Secret intent will not control where the acts clearly show the opposite intent. The plaintiff in the attachment suit evidently proceeded under 3 Comp. Laws, § 9425, which gave the power to
After taking judgment, three courses were open to him:
1. He could levy and sell, then prove the deficiency realized from the sale against the estate.
2. He could present a contingent claim against the estate, in which event he would be compelled to realize from his security first, and then proceed against the estate for the residue.
3. He could abandon his lien and levy upon the real estate, and present the judgment for allowance against the estate, in which case he would take his chances with other creditors, and receive his pro rata of the entire estate.
He took the third course. Under his contention he would be entitled to share pro rata with the other creditors on the full amount of his claim, and then have his lien left to apply upon the payment of the residue. This course would give him an unfair advantage over other creditors, contrary to Aldrich v. Annin, 54 Mich. 230. After the levy the chief purpose of the attachment had been accomplished, viz., to secure and preserve a lien until a levy could be made. After the levy the only function left for the attachment to perform was to fix the date from which the title which the attaching creditor might acquire by sale should run.
It is unnecessary to determine whether the attachment was merged in the levy. We think it clear that the release and return of the levy by the direction of the complainant, his proving the claim against the estate, not as a contingent claim, but as an absolute claim, unsecured, without anything to indicate his intention to retain his lien, and the continuance of that condition for more than a year, amounted to an abandonment of the attachment levy, and placed him in the list of general creditors. Butler v. White, 25 Minn. 432; McConnell v. Denham, 72 Iowa, 494.
“ An attaching creditor * * * may waive by delay,*179 by conduct- which indicates an abandonment, of his rights, by claiming benefits, or by prosecuting other judicial proceedings which are inconsistent with the continuation of the attachment.” i Cyc. 630.
Counsel for complainant cite Merchants’ Nat. Bank v. Greenhood, 16 Mont. 395. The facts in that case afford a sound basis for the language of the court in regard to abandonment, but are in no wise the parallel of the facts in this. Immediately after the return of the execution in that case unsatisfied the plaintiff filed a bill in equity to sustain his rights by virtue of the attachment levy, and the court say:
“ Instead of abandoning the attachment in fact, the respondent at once came into the court of equity to render more completely available its attachment lien.”
The case was submitted and argued in the court below and is argued here upon the theory that it was necessary to preserve the attachment lien as a basis for the second levy. We have therefore disposed of the case upon that basis.
The decree is affirmed, with costs.