130 Mass. 201 | Mass. | 1881
If we understand the claim of the defendant m this case, in substance it is this: when an attachment is made, upon a libel for divorce, of the property of the libellee, that attachment differs from other attachments in this, that the same property is liable to be sold over and over again for its full value, as many times as the equity of redemption is purchased by any person and the property is redeemed. That is to say, if the entire estate is sold on execution, and the execution debtor assigns his right to redeem his estate thus sold on execution to a third person, who redeems it, then it becomes again the debtor’s, and is held under attachment by the libellant, which attachment takes precedence ■ of the title acquired under the assignment of the right of redemption and by the release of the estate upon redemption, so that the estate shall necessarily be held to answer as many times its whole value as the libellant shall succeed in obtaining executions to that amount. When the libellant has once received the full value of the property attached, she has received all that the law warrants her in receiving from the attachment. If the property attached is sufficient in value to satisfy but one execution, when it has satisfied that execution it has done all that the libellant had a right to expect it to do. If the property was of much more value than the amount of the execution, then the libellant might satisfy the execution out of the property, and retain the attachment upon the balance of it for further security; or if the property were of such a nature that the officer might be justified in converting it into cash, he might so convert it, satisfying the execution out of the proceeds, and hold the remainder under the attachment.
But if we understand the defendant’s points, in addition to such a claim she makes another, which seems to be this vthat because an execution debtor has a right to redeem property
It would probably be difficult for an officer to describe exactly at the time of making the attachment what, in this view, he attached. The presumption of law always is that real estate is set off or sold upon execution for its true value; and the right to redeem is not, or at least technically was not before the St. of 1877, e. 176, an estate in land, but it was simply a right in tho debtor to substitute money for it at its real value, and again receive it in lieu of the money so paid. The purpose of this right was to protect a party against being deprived of his estate in land because of his temporary inability to pay a debt in money.
Although the presumption in law is that an estate thus appropriated on execution is appropriated at its full value, and nothing of value remains to the debtor, yet during the year in which he may redeem the estate there may be very great fluctuations in the value of the land, and the creditor may find that he has actually received but a moiety of his debt, or the debtor may find that, in consequence of a great change in value, this piece of land has become of double the value at which it was set off or sold, and so his right to redeem has become a valuable right, and by the St. of 1877, c. 176, becomes an attachable property. But that right was not property in law before the St. of 1877, and in the present case it was not and could not be attachable property at the time the attachment in this suit was made, and the only mode in which any creditor could ever avail himself of that right is by attaching it upon mesne process or seizing it on execution after it shall come into existence.
The embarrassment of the defendant’s position meets her when she comes to define the decree which she claims should be
“It is ordered, adjudged and decreed by the court, that the plaintiff forthwith pay to the clerk of this court the sum of $507 and the costs of this suit to the use of said defendant, and that within fifteen days thereafter said defendant execute and acknowledge a release in common form to the plaintiff, of the right, title and interest in and to said premises which the defendant acquired therein by and under the sale set forth in the bill and the deed to her by Benjamin F. Bayley, deputy sheriff, subject, however, to the attachment of the defendant in said libel of divorce to secure any executions that may hereafter issue on decrees in said libel.”
Analyzing this, we find that- the plaintiff is to pay $507, the whole value of the land, as determined by law, and is to receive a conveyance of the land subject to an attachment to its full value.
It is not, however, necessary to decide upon the validity of this apparently extraordinary claim, for the defendant is required by the decree ordered to release only what she has acquired under the levy and sale, and that title only is the one which she is enjoined against asserting; and that title which she thus acquired was not the right to redeem, but simply the estate subject to that right of redemption, and if that were originally attached, the attachment remains, so that if she ever had a right to it she still has it.
The other point made at the trial, that the plaintiff was bound to tender the money before bringing his bill to redeem, we understand to be abandoned.
Decree for the plaintiff.
The rescript of the full court, dated April 6, 1880, ordered the following entry to be made upon the docket: “ Decree for plaintiff,” and contained this statement of the grounds and reasons of the decision: “In contemplation of law, when a levy was made upon the attached real estate of the libellee, it was a levy of the whole estate, and no interest therein remained under attachment.” An entry on the docket was made accord-
The defendant, on June 11, appealed from this decree to the full court; and on June 23, not waiving his appeal, but fearing that, as that decree purported to be the decree of the full court, and had been so treated by the clerk by issuing execution thereon, it might be held to be a decree of the full court, and therefore not subject to appeal, presented a petition for a further hearing before the full court as to the form of the decree in the cause, and therein suggested that the form of decree annexed to the report was not in conformity with the law in the particulars following: 1st. In containing the clause “ and it was found by the court that this plaintiff was in the exercise of good faith.” 2d. In requiring the defendant to execute a release. 3d. In making no provision as to costs.
By leave of the court, arguments were submitted in writing in September by the same counsel upon the question whether the petitioner should be further heard upon the original report on the question of the form of the decree.
The full court, by the terms of the report on which this case was reserved for its determination, might doubtless have determined the form of the decree to be entered, as well as the merits of the case. Gen. Sts. c. 112, § 11; e. 113, §§ 8,15. But it did not do so; and its opinion and rescript, while ordering in general terms a decree for the plaintiff, left the form of that decree to be settled before one justice. The decree afterwards entered, although in part purporting to recite the judgment of the full court, was only the decree of the justice who entered it, and was therefore, like all other decrees
Rehearing denied.
The appeal was argued in November by the same counsel, upon the grounds stated in the petition for a rehearing.
Whether the conveyance from Charles H. Sew all to the plaintiff was without consideration, and in fraud of the defendant and of the creditors of Charles H. Sewall, was wholly immaterial, in any aspect of the case. If, as the defendant contended, the land was still subject to her attachment after the sale on execution, that attachment took precedence of the subsequent conveyance to the plaintiff, even if this conveyance was made and received in good faith. If, as was intimated by this court upon the first argument, the attachment was no longer in force after the sale on execution, Charles H. Sewall, against whom the judgment and execution were awarded, might himself have maintained a bill in equity to redeem the land from that sale; and his deed to this plaintiff passed all the rights that he had, even if it passed no more because made in fraud of creditors. Gen. Sts. c. 103, §§ 29—31, 44, 46, 50. St. 1874, a. 188. The issue whether the conveyance to the plaintiff was in good faith or was in fraud of creditors, though made by the pleadings and tried by the parties, yet, being wholly irrelevant to the real issue between them, cannot be decided in this case; and the decree below should be amended, as suggested by the defendant, by striking out the words “ and it was found by the court that this plaintiff was in the exercise of good faith.”
A decree that the plaintiff, on complying with its terms, have seisin and possession of the premises, and that the defendant be perpetually enjoined from setting up or asserting any title under said levy and sale on execution, is all that is required by statute,
Neither party is entitled to costs; not the plaintiff, because he made no tender before bringing suit; not the defendant, because her 'claim was groundless. Gen. Sts. c. 103, § 31. Saunders v. Frost, 5 Pick. 259, 274.
Decree accordingly.