3 Mass. App. Ct. 599 | Mass. App. Ct. | 1975
This is a bill for declaratory relief brought in the Superior Court to test the validity of an attachment
The case was tried on a statement of agreed facts constituting a case stated. The relevant facts are as follows. The plaintiff commenced his action at law against one La-Pierre, attached LaPierre’s land on mesne process on May 20, 1969, and obtained a judgment against him for approximately $23,760 on June 12, 1973. An execution issued on the judgment and was delivered to a deputy sheriff on June 26 of that year with instructions to levy upon the attached land. After “tr[ying] unsuccessfully” for the next two weeks “to collect the amount of the execution from La-Pierre,” the deputy sheriff recorded the execution in the appropriate registry of deeds on July 16, 1973, in accordance with G. L. c. 236, § 4. The memorandum which was appended to the execution and which was dated July 16, 1973, recited: “I have this day levied on and taken all right, title and interest which... [LaPierre] had on May 20, 1969____” In October, 1973, a sheriff’s sale was held in which the defendant in the present case was the highest bidder. The defendant, however, refused to accept a conveyance or pay the amount of its bid on the asserted ground that the plaintiff’s attachment had been lost and that the sale was therefore invalid. On June 2, 1969, the defendant had itself commenced an action at law against LaPierre and attached the same land. On October 23,1973, the defendant obtained a judgment in that action for about $112,975, and its execution thereon was recorded in the registry of deeds on November 16 of that year.
In the decree appealed from the plaintiff’s attachment and the sheriff’s sale were declared valid, and the defendant was ordered to pay the amount of its bid, with interest, upon delivery to it of a deed to the land. We are of the opinion that the decree was based on a misunderstanding of the interrelationship between two statutes — G. L. c. 223, § 59, and G. L. c. 236, § 4 — and was therefore erroneous.
General Laws, c. 223, § 59 (as unamended), insofar as material, provides: “Property which has been attached
The thirty-day period referred to in G. L. c. 223, § 59, is one during which the attached property “shall be held ... so that it may be taken on execution” (emphasis supplied). It has long been held under § 59 and its predecessors that an attachment not levied upon within that period is automatically dissolved. Hardy v. Safford, 132 Mass. 332, 335 (1882). Whittemore v. Swain, 198 Mass. 37, 40 (1908). Moseley v. Moseley, 240 Mass. 1, 3 (1921). Horn v. Hitchcock, 332 Mass. 643, 644-645 (1955). By contrast, the forty-day period in G. L. c. 236, § 4, refers to the time during which a copy of the execution must be “deposited by the officer in the registry of deeds” after the judgment. There is no inconsistency. The two statutes are directed at two different acts to be performed by the officer in order to preserve the lien. Both statutes must be complied with or the attachment is lost. See Horn v. Hitchcock, supra.
In the memorandum recorded with the execution in the present case, the deputy sheriff made his levy “this day”
The decree is reversed. Judgment is to be entered declaring the plaintiff’s attachment to have been dissolved and the sheriff’s sale invalid for failure to comply with G. L. c. 223, § 59.
So ordered.
“ [P] rovided, that if land was attached on mesne process in Nantucket county and judgment was rendered in another county, or if judgment was rendered in Nantucket county and land was attached in another county, said copy shall be deposited within seventy days after judgment in the action, and the attachment shall become void seventy days after said judgment unless the copy is so deposited.”