26 Wis. 560 | Wis. | 1870
In this case the court are all agreed upon the point that there must be a reversal of the judgment, but there is a serious difference of opinion as to-the reasons or ground for such reversal. The majority think that the levy under the writ of attachment was sufficient' to hold the interest of William Sturges in the lands mentioned in the return of the officer; that the subsequent deed executed by him to Kinkhead does not even constitute a cloud upon the plain
The question material to be considered is as to the effect of the levy upon the writ of attachment, and the proper intendment to he made upon the return of the officer. The attachment suit was against nonresident defendants. The writ was in the usual form, commanding the sheriff to attach so much of the lands, etc. (not exempt from execution), of the defendants, William Sturges and Rowland Ellis, late copartners, etc., as would he sufficient to satisfy the demand of the plaintiff. Upon this writ the officer made the following return: “ State of Wisconsin, County of Iowa, ss. By virtue of this writ, on the 15th day of October, A. D. 1856, I attached the southeast quarter of section ten (10) and fractions one (1), two (2), and three (3) in section ten (10), town eight (8), range four (4) east, as the property of Rowland Ellis, and on the 16th inst. I summoned George W. Cobb and Henry Le-nahan, two freeholders of said county, who, being duly sworn by me, appraised said lands at the sum of nine hundred dollars. I have also left a certified copy of the writ with my return thereon, also a copy of the affidavit and appraisement of lands, with the register of deeds of said county, this 16th day of October, 1856. The within named defendants not found in this state. I further return there was no partnership property found in my county of the within named defendants, Sturges and Ellis.” Signed by the officer. Now it appears that the lands above described were in fact and truth the property of William Sturges, and not the property of Rowland Ellis, as the officer states in the return. And the question presented is, whether this mistake of the officer in respect to the true ownership of the lands invalidates the attachment, so that it did not become a lien even upon the interest of Sturges, the real owner.
There are authorities which hold that it is essential
In the above return the officer states that he attached the lands designated, by virtue of his writ.
No other objection is taken to the regularity of the proceedings. The requisite affidavit was filed; the proper process was sued out from a competent tribunal ; that process ran against the true owner, whose property was seized. It seems to me that this gave the court complete jurisdiction over the property seized upon the writ, and authority to divest by a subsequent judgment and sale the title of William Sturges in the lands. This being so, it follows of course that this suit was entirely unnecessary for the protection of any title founded upon the attachment proceeding. For the subsequent deed executed by Sturges gave no color of title, and constituted no cloud upon the title of the plaintiff.
It has been suggested that this view is adverse to and in direct conflict with the decision in the case of The Bank of the Northwest v. Taylor, 16 Wis. 610. It does not appear to me that any such conflict exists. All the facts in the case of The Bank of the Northwest v. Taylor, necessary to be referred to in order to
Now, I suppose all that was decided here was this proposition: that where the attachment was dissolved as to C. C. Taylor, whose property the sheriff stated in the return he had attached upon the writ, there being no other facts as to ownership before the court, and nothing whatever to show that any other person was interested in the property, such property could not rightfully be any longer held in the custody of the court, but should be delivered over to the real owner, C. C. Taylor. And it might well be that under such circumstances the attachment proceeding against the non-resident defendant would fail because none of his property had been seized upon the writ; and that, as it would be essential to the jurisdiction of the court, in order to sustain the attachment at all, to seize the property belonging to him, failing in that the attachment would go down. But I really do not
Eor these reasons the majority think the judgment of the circuit court should be reversed, and the cause remanded with directions to dismiss the complaint.
The question in this case is as to validity of a levy upon real estate by process of foreign attachment. The proceeding was against two defendants, Sturges and Ellis, as copartners, upon a partnership debt. The lands seized belonged to Sturges, but were attached as the property of Ellis. The sheriff so certified in his return, and on the copy of the writ filed in the office of the register of deeds. After the levy and before the judgment in the attachment suit, Sturges conveyed the lands to the defendant Kinkhead for a valuable consideration, as appears by the deed. The plaintiff claims by virtue of the sale and sheriff’s deed in the attachment suit, and commenced this action, alleging that there was a mistake in the sheriff’s return to the writ of attachment; that he intended to levy and did levy upon the lands as the property of Sturges, and intended so to return, tie asks to have it adjudged that there was such mistake, and to have his title confirmed, and the conveyance to Kinkhead set aside as a cloud. The question thus presented seems to be one well settled by authority. The proceeding is a proceeding in rem, and can only affect the property proceeded against. The power and jurisdiction of the court extend no farther. It can only act upon and divest the title of such property belonging to the defendant in attachment as is shown to be within its jurisdiction. At that time, 1856, the only
I am content to abide by the authority of these cases, believing that they were correctly decided, and knowing of no decisions to the contrary. I think it very greatly for the interest of all, as well of the parties to the action as of others dealing in titles, that this rule should prevail. It gives certainty to the proceeding, and is in accordance with what I understand
But suppose I am wrong in this, and that it was the fact of levy upon the lands of Sturges, and not the return of the officer that he had so levied, which gave jurisdiction as against him; and suppose, also, that the same presumption in favor of the jurisdiction of the court in these special proceedings is to be indulged as in other cases in a court of general jurisdiction, a proposition which has sometimes been held (Falkner v. Guild, 10 Wis. 572, and Rowan v. Lamb, 4 G. Greene (Iowa), 468), and perhaps rightly; how do these help the case of the present plaintiff? It would then only follow that the return of the sheriff was amendable, and that he could amend it according to the fact so as to show a proper levy upon the lands as the property of Sturges. Perhaps as between the plaintiff in attachment and Sturges, such an amendment would have been proper. I am inclined to think it would. It would have been in furtherance of justice, and so as to correct a mistake of the officer. And if it would have been proper on the application of the plaintiff in attachment to have allowed an amendment, then it would be proper on the application of the present plaintiff to allow it, which is all that is sought by this action. The plaintiff here is asking equity to grant him relief which he could have obtained at law. He asks equity to correct a mistake which was and is correctable by motion at
But to return to the proposition which I was considering. The fact is, no amendment was made at the time Kinkhead purchased and took title from Sturges; and none has yet been made. At that time, therefore, it appeared by the record and by the copy and return filed in the register’s office, that the court had no jurisdiction as to Sturges, and that there was no attachment of or lien upon his interest in or title to the lands. His title was free and unincumbered of any lien created by the attachment. Now, it is a well-settled principle in such cases, that no amendment will be allowed so as to affect the title or cut off the rights of the intervening purchaser from him. The title and rights of such purchaser will be saved by the amendment. Whitney v. Brunette, 15 Wis. 69 and 74, and cases cited. Kinkhead must, therefore, be protected. He is a purchaser in good faith and for a valuable consideration paid. At least nothing is averred in the complaint nor proved by the plaintiff to the contrary. And the rule of law in such cases is, as will be found by the authorities last above referred to, that the burden of proving mala Jides and want of consideration rests on the attaching creditor or the party claiming under him. The attaching creditor or the party claiming under him, and in this instance the plaintiff, must aver and prove the fraud or want of consideration. In this case, if another creditor of Sturges and Ellis, or of Sturges, had subsequently issued his writ of attachment and seized the lands as the property of Sturges, there can be no doubt upon authority that his title would have prevailed over that of the plaintiff here, unless the plaintiff could have shown bad faith, or that nothing was in fact due to such alleged creditor; and in such case, if the plaintiff had moved an amendment of the return, it would
And that this was the effect of the attachment and of the return as it stood at the time of the purchase, and as it stands now, I have the direct authority of this court for saying. I have the authority of this court that the levy created no lien upon the title of Sturges, and none upon the lands as against him. In The Bank of the Northwest v. Taylor, impleaded, etc., 16 Wis. 609, this court had occasion to consider the effect of a return of property seized “ as the property of” one of two defendants in attachment, and it was held to create no lien upon the title or interest of the other defendant in the same property. The question came up upon a motion for a return of the property, which was personal, to the defendant as whose property it had been seized or returned as seized, after a traverse of the affidavit by such defendant, on the trial of which he had been successful. But before the motion was made, the sheriff had amended his return so as to show a seizure of the property “ as the property of both defendants.” The circuit court denied the motion for a return of the property, upon the ground that after amendment of the sheriff’s return it was properly detained by him as the property of the other attachment defendant; and from that order there was an appeal to this court. The other facts, as well as the conclusion of this court as to the effect of the return as originally made, or without the amendment, will sufficiently appear from the following extract from the opinion of the court by Mr. Justice Paine, who says: “This suit was com--menced against the appellant (C. C. Taylor), who was a resident of this state, and against N. B. Taylor, who was a resident of Illinois. A writ of attachment was
And the same case is also fully to the point that it is the return and not the secret intention of the sheriff which creates the lien; or rather that it is by the return we are to ascertain what the seizure is, and the nature and extent of the lien acquired by virtue of it. The return is sole evidence of the lien, and limits and defines its nature and extent. In this case it was a lien upon Ellis’s interest in the lands, and extended only to that. It had no greater effect than if Ellis had voluntarily created a lien, or attempted to, or had given a mortgage upon the lands. At least such was the effect of the return as to all third persons — as to a purchaser. As between the immediate parties, there existed, it is true, under the power of amendment, authority to change the return, but not so as to affect the rights of third persons coming in before such authority was exercised. As to third persons, the lien was really and truly what the return represented it to be, and there exists no authority to change it to their injury. The defendant in the action, Kinkhead, was entitled to trust to the return as it was, and look to the lien as it there appeared to be; for as the lien there appeared, such it was in fact to him, notwithstanding the intention of the officer who executed the writ, or his mistake, unless Kinkhead had actual knowledge of such intention or mistake, in which case he might be chargeable, perhaps, on the ground of fraud, though I think it very doubtful if that would be so. The question must turn, as it seems to me, upon the actual existence and validity of the lien as shown by the return at the time of purchase, and Taylor’s case very clearly shows that at that time there
And another thing is likewise very clearly shown by the same case, which is, that the return was not open to any intendment or implication by which its operation was to be enlarged, or the lien extended so as to include the title or rights of Sturges in the lands. Nothing short of an actual amendment of the return would have this effect. For, if in Taylor’s case the return as originally made had by implication or otherwise created any lien upon the property as the property of his co-defendant, then of course he would not have been entitled to have had the property restored to him upon dissolution of the attachment against him. The property would have been held to answer the lien created by implication or intendment against his co-defendant.
But I have been referred to the case of Johnson v. Moss, 20 Wend. 145, as upholding the doctrine of intendment in a case of this kind. I clearly think it does not, and that it is not at all in conflict with Taylor’s case above referred to. That was a case of domestic and not oí foreign attachment, as the learned judge who wrote the opinion was very careful to note. “ The attachment did not issue against the defendant as a non-resident, but on the ground that the defendant had departed from the county with intent,” etc. I give the words, emphasizing them just as they are found in the opinion. The attachment was issued by a justice of the peace, and was against a single defendant. The constable returned that he had attached a table, or one fall of a table, but did not say it was the defendant’s property, or levied on as his; and objection was taken to the return on that ground. In answer to the objection, Mr. Justice Bronson said: “ The fair and reasonable intendment is, that the property taken belonged to the defendant. The return was, I think, sufficient.” “ I do not doubt the correctness of the
It is clear to my mind, therefore, that the title of Kinkhead cannot be disturbed upon any allegations or proofs which have been made in this case, and that the judgment of the court below should he reversed, and cause remanded with directions that it be dismissed.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.