75 F. 627 | 6th Cir. | 1896
after stating the case as above, delivered the opinion of the court.
Counsel for appellant upon the argument in this court abandoned that part of his appeal which challenged the action of the court below in dismissing the bill as against Lucy D. S. Parker personally, and as executrix of her husband, Franklin Parker, and in so far as it sought to subject to the judgment against Morgan anything but the real estate attached and levied upon in the suit at law in the court below. The bill is to be treated, then, as a bill in aid of complainant’s execution at law. As attachments and executions may be levied on equitable interests in real estate in Michigan, such bills are there frequent and well-recognized equitable remedies (Lasher v. Stafford, 30 Mich. 369; Doak v. Runyan, 33 Mich. 75; Pursel v. Armstrong, 37 Mich. 326), and will be entértained in the federal courts of equity sitting in that state (Lorman v. Clarke, 2 McLean, 569, Fed. Cas. No. 8,516).
1. It is first objected that the complainant lost his lien by attachment because of the nulla bona return on his first fieri facias, and his unreasonable delay in suing out the alias writ. The judgment was rendered in June, 1893, and the first execution issued in the same-month. The nulla bona return was made in September, 1893, and the alias writ issued in February, .1894, and was returned after levy on the attached lands in April, 1894. The second writ issued, therefore, less than nine' months after the rendition of the judgment. Was the nulla bona return an abandonment of the attachment? If not, was the failure to levy on the attached lands until more than eight months after the judgment an unreasonable delay? Both these questions must be answered in the negative. It is true that an attachment upon personal property is ordinarily discharged by the return nulla bona on an execution issued upon the judgment. It is also true that the duty of the judgment creditor to use reasonable dispatch in levying execution upon the personal property attached before judgment is imperative. And, if the property here • seized were personal, the contention of appellees might succeed. But it is real estate, and with respect to attachments on that kind of property we conceive that a somewhat less strict rule of diligence applies. Personal property can only be attached by actual seizure by the sheriff; marshal, or other executive officer. The lien on it can only be maintained by its manual retention in official custody. A release of it by the attaching officer for any purpose destroys the lien. The necessity
“Each register of deeds shall note on every such certified copy the day, hour and minute when he receives it; and shall also enter in a book to be kept*632 by him for that purpose, the names of the parties in such writ, designating who is plaintiff and who defendant, the time when the land was attached, and the time when such copy wag deposited.”
Section 8017 provides:
“That any attachment on real estate shall also be discharged upon the record thereof by the register of deeds in whose custody it shall be, wheuever there shall be presented to him a certificate executed by the plaintiff, his personal representatives or assigns, duly acknowledged specifying that such attachment has been removed or otherwise satisfied or discharged; or a certified copy of the action of the court removing the same.”
It would seem to be clear enough, from these provisions that the attachment upon real estate is nothing more than a statutory mode of recording a lien on real estate, in anticipation of a judgment and sale of the same to pay the debt. It does not interfere in the slightest with the use and enjoyment of the land by the owner, and the exigency present in the attachment of personalty, already pointed out, has no existence where realty is the subject of process. In Walkley v. Bostwick, 49 Mich. 374, 13 N. W. 780, the action was brought against the sheriff and one in whose behalf the sheriff had made an alleged wrongful levy on the lands of the plaintiff under an execution against another person, and judgment was given for plaintiff in the court below. In reversing this judgment the supreme ■ court of Michigan, by Mr. Justice Cooley, said:
‘‘At most, the act of defendants amounted to no more than a formal assertion that the ownership of plaintiff’s land was in John Walkley, and that they proposed to maintain that assertion by legal proceedings. * * * When a-sheriff levies his execution on the personal property of one who is a stranger to the judgment, there is a positive wrong, because there is a positive interference with the owner’s possession. There might also be a trespass in the levy of execution on lands, if the officer were to go upon the lands for the purpose, but it is not pretended that he did so in this ease. Here the plaintiff finds her injury in the bare fact of levy; in other words, in the bare fact that these two defendants, without malice, have asserted that another party owns the land. But in law this is not an actionable wrong.”
Taking into consideration the real nature of the attachment, we think that, in a case where the rights of third parties do not intervene, no delay in the execution, after judgment, ought to destroy the lien, if it falls short of clearly indicating an intention to abandon the same. Does a delay for nine months in this case indicate such an intention on the part of the complainant? We are very clear that it does not. In Speelman v. Chaffee, 5 Colo. 256, it was held that the delay of a year in issuing execution, after judgment, on an attachment on personal property, was not unreasonable, or such as to indicate abandonment. If this be a sound view in the case of personalty, then, for the. reasons stated, a delay of nine months in case of real estate ought certainly not to work an abandonment.
2. But how as to the nulla bona return? Where that has been held to work an abandonment in case of personal property, the return has usually appeared to have been made by direction of the plaintiff or his counsel. In such a case there is little room for doubt of an intention to abandon. But, even if cases are found in which such a return without direction by plaintiff has been held to work a release of the lien on personal property, it must be remembered that the
"When the execution is levied upon real estate only, as in this ca.se, the sheriff has no interest in it, beyond his fees for malting the 'levy, until the money is collected or the sale made; and then he is entitled to his poundage on the amount collected, or for which it is sold. In such case, until the sale is made the sheriff incurs no risk or responsibility. He is not entitled to the possession of the property, and is constantly subject to the direction of the plaintiff in the execution as to further service in making the collection.”
There is nothing in the record to show, and we cannot presume, that the return of nulla bona on the original fieri facias was by direction of counsel for the judgment creditor. If not, certainly the marshal could not, by his negligence in failing to observe the existence of the attachment on the land, and to levy thereon, deprive the party of Ms record lien. Vroman v. Thompson, 51 Mich. 452, 16 N. W. 808; Draley v. French, 28 Vt. 546; Dawson v. Daniel, Fed. Cas. No. 3,669; Kneel. Attachm. 300; Wade, Attachm. § 260; Drake, Attachm. § 240. in our opinion, the issuing of the original writ, and its return nulla bona, are not enough to constitute an abandonment of the lien secured by the attachment, and the alias writ was in time io perfect the lien, and to make it available to the complainant in this suit.
3. Did the fact of Morgan’s death, and the appointment of his administrator, prevent the enforcement of complainant’s remedy against the land attached by a proceeding in the court below, without regard to the settlement of Morgan’s estate in the probale court of Washtenaw county, Mich.? It is contended that the benefit of the attachment, if any there was, must be enjoyed by application to the probate court, and that comity requires that no execution should be enforced against the land which, if (lie complainant’s claim is right, belongs now to Morgan’s administrator, and should be in his custody, and under the control of the probate court. Section 5946 of Howell’s Annotated Statutes provides that "a claimant having a lien upon real or personal estate of the deceased, by attachment previous to Ms death, may, on obtaining judgment, have execution against such real or personal estate.” It seems to us clear that this provision of Hie statute intended that the lien secured by attachment upon real estate of the deceased debtor before Ms death should be enforced as if he were alive, and that proceedings in execution and sah; should lake place without regard to the settlement of his estate in a probate court. Without considering, therefore, the question of comity between the courts, we think this special statutory exception is quite sufficient to justify a court of equity in aiding the execution which is expressly permitted by the written law of Michigan, Smith v. Jones, 15 Mich. 281; Hoehgraef v. Hendrie, 66 Mich. 556, 557, 34 N. W. 15.
5. If the amendment to the bill explained the delay of complainant, and was an answer to the charge of laches upon which the demurrer to the original bill had been sustained, it was, in our opinion, the duty of the court to allow the complainant to file it; and, having al
Coming now to the question of laches, we are clearly of the opinion that the efforts made by the compiainart to find property of Morgan out of which to satisfy his claim were persistent and diligent. The mere fact, if it is to be inferred as a fact from the averments of the bill, .that the conveyances of land from Morgan to defendants’ predecessor in title, Lucy W. S. Morgan, were matters of public record, did not put the complainant on notice that there was no real consideration for the deeds. Moreover, the bill avers that the defendants caused it to be understood by statements that the transfers were made for good considerations, to wit, §25,000, and that not until 1889 did the complainant, discover any evidence with which to impeach such claim. We think that the averments of tin; amendment are fully up to the requirements of the strictest rule in regard to laches, and that, giving them their full effect, they disclose a. constant effort on the part of all the defendants to cover up and withhold from the complainant any information with respect to the actual consideration upon which such conveyances were based. If the averments of the bill are true, it: is made sufficiently to appear that Morgan was a man with a, large amount of property and a large indebtedness, who had succeeded, by the aid of the defendants, in defeating all his creditors for years, and in withholding and secreting the evidences by which it could be proven in a judicial proceeding that the real estate and other property really belonging to him were in fact his. Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. 382; Traer v. Clews, 115 U. 8. 528, 6 Sup. Ct 155; Kirby v. Railroad Co., 120 U. S. 130, 7 Sup. Ct. 430; and Bailey v. Glover, 21 Wall. 342, — are all cases laying down the principle that, where a party injured by the fraud remains in ignorance of it without any fault or want of diligence on his part:, tlir bar of the statute does not begin to run until the fraud is discovered, though there bo no special circumstances, or efforts on the part of the party commit - ing the fraud to conceal it from the knowledge of the other party. The strictest rule on the subject of laches which the authorities will justify is that, before delay in filing a bill to rectify fraud can be excused, it must appear either that the fraud was actively concealed, or that it was of such character as to conceal itself, and that the complainant: has been diligent in his investigations. Pearsall v. Smith, 149 U. S. 231-236, 13 Sup. Ct. 833. Judged by either test, it is manifest that there is no such laches on the face of the bill, as it was proposed to amend it, as to make it demurrable. The result is that the action of the court below in striking ft om the files the amendment to the bill was erroneous, and that the bill as amended was not demurrable, so far as it sought relief against Kinne and Johnson, executors of Lucy W. S. Morgan, and Manley, administrator of E. W. Morgan, in aid of the attachment and levy upon the lands attached In the suit, at law. The decree of the circuit.court is therefore reversed in part, with directions to permit the filing of the amendment to the bill, and to require Kinne and Johnson, executors of Lucy W. S.
