181 Mass. 308 | Mass. | 1902
The only ground which (ran be urged against the validity of the attachment at the first is the mistake in the name of the defendant. The defendant was in fact John Kovarik of Woburn. The misnomer may have been matter for abatement if John Kovarik saw fit to plead it in abatement, but the writ was a writ against him. No statute provides that an attachment of real estate shall be ineffectual or void if the defendant is wrongly named in the writ, nor does any statute or decision require in terms that the documents which show the attachment shall state the correct name of the defendant. The attachment cannot be ruled as matter of law not to have been an attachment of the estate of John Kovarik because it described the property as that of John Kavarik of Woburn, it being shown that John Kavarik was not the name of any person, and that the mistake was not in any way fraudulent or an attempt to conceal the attachment.
The rule as to the description of the land necessary in an
On the other hand there is a plain distinction between this case and that of Terry v. Sisson, 125 Mass. 560, relied on by the tenant. There the attachment was of a deposit of the defendant’s in a savings bank, and was by trustee process. That is a process devised to give the creditor the benefit of the property of his debtor which cannot be come at to be attached in the ordinary way. See Prov. St. 1758-59, c. 10; 4 Prov. Laws, (State ed.) 168; Anc. Chart. 614; St. 1794, c. 65. It is in a way governed by equitable considerations. In Terry v. Sisson, the alleged trustee owed the defendant a debt and was justified in paying that debt upon request if in fact in ignorance of the attempted attachment, and if that ignorance was not the result of negligence or breach of duty on the part of the trustee. In the present case the tenant was a voluntary purchaser not acting under any obligation to Kovarik.
Instances are not rare in which the constructive notice provided for by statutes requiring the registration of instruments proves insufficient to protect the interests of those for whose benefit they are intended, but who do not for that reason have a right to priority. See Sykes v. Keating, 118 Mass. 517; Gifford v. Rockett, 121 Mass. 431; Ouimet v. Sirois, 124 Mass. 162; O'Connor v. Cavan, 126 Mass. 117; Gillespie v. Rogers, 146 Mass. 610.
The remaining question is whether the attachment was dissolved or made ineffectual as to the tenant by the amendment allowed without notice to him upon the entry of the writ on the suit of Ellis. This amendment did not change or enlarge the
The tenant was not prejudiced by the amendment. Notwithstanding the misnomer, Ellis, like the plaintiff in Cleaveland v. Boston Five Cents Savings Bank, ubi supra, had the right to obtain a judgment and enforce the lien of his attachment, even without amending his writ if the defendant did not plead in abatement. Amendments to cure mere defects in form or clerical errors do not affect attachments. Ball v. Claflin, 5 Pick. 303. Miller v. Clark, 8 Pick. 412. Haven v. Snow, 14 Pick. 28, 33, 34. Johnson v. Day, 17 Pick. 106, 109. Knight v. Dorr, 19 Pick. 48. Wight v. Hale, 2 Cush. 486, 493. Warren v. Lord, 131 Mass. 560. Cain v. Rockwell, 132 Mass. 193. To dissolve the attachment or make it ineffectual as against a subsequent attaching creditor, purchaser or surety, the amendment must be such as to let in some new demand or cause of action. Haven v. Snow, ubi supra. Wight v. Hale, ubi supra. Cutter v. Richardson, 125 Mass. 72. Kellogg v. Kimball, 142 Mass. 124, 128. Doran v. Cohen, 147 Mass. 342. Dalton v. Barnard, 150 Mass. 473. Townsend National Bank v. Jones, 151 Mass. 454. Driscoll v. Holt, 170 Mass. 262.
As the attachment could upon the evidence properly be found to have been valid when made, and was so found, and as it was not dissolved or made ineffectual as to the tenant by the amendment, the rulings and refusals to rule excepted to by the tenant were not error.
Judgment for the demandant according to the finding.
