263 Mass. 371 | Mass. | 1928
These are appeals from findings by a judge of the Superior Court and his denial of requests for rulings, and from final decrees dismissing a bill in equity in each case. The bills were brought by the owners of two parcels of land numbered, respectively, 40 and 44 Arbutus Street, in the Dorchester district of Boston, against the Nessens, judgment creditors of a former owner of both parcels, and against the deputy sheriff who, by their direction, had begun levies upon both parcels and had advertised for sale on execution the interest of such former owner, at the time the property was attached on mesne process in the action on which the said judgment was obtained. The bill in each case seeks to restrain and enjoin the defendants from making such levy
The judge made the following and other findings: In 1917, one Barnett Neiterman acquired title to the lots in question together with other land. While the record title to the lots stood in his name, the defendants Nessen brought an action at law against Barnard Neiterman by a writ dated July 17, 1923, and attached all the right, title and interest of said Barnard Neiterman in and to any and all real estate in the county of Suffolk. An attested copy of the writ, with so much of the officer’s return as related to the attachment, was deposited in the registry of deeds on the date of the writ, and the attachment was duly indexed in the record of attachments. This action was brought to recover a commission for the sale of the lots numbered 40 and 44 Arbutus Street, now owned by the plaintiffs, and other land, the record title to which then stood in the name of Barnett Neiterman.
In December, 1923, while the attachment was outstanding and undischarged, Barnett Neiterman conveyed the lots above described and other land to Julius Block and Harvey Solomon; and by subsequent conveyances the plaintiffs Bates and Penansky acquired title to lot 44, and the plaintiffs Solomon and Shechtman acquired title to lot 40. The attachment has never been discharged, and, the defendants Nessen having recovered judgment in their action against Barnard Neiterman, are proceeding to sell the lots conveyed to the plaintiffs on execution issued in the above action.
The trial judge further found that Barnett Neiterman and Barnard Neiterman are one and the same person, although none of the plaintiffs knew this to be the fact when they took title; that Neiterman was known to some extent by the names of Barnard Neiterman, Barnett Neiterman and Bernard Neiterman; that he also at times used the name Barney Neiterman; that, in his banking. transactions he usually
In Norris v. Anderson, 181 Mass. 308, the validity of an attachment was attacked because of a mistake in the name of the defendant. In that case it was said, at page 312, “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.”
In the cases at bar there was no evidence that the name Barnard Neiterman appearing in the writs was not his true
It is manifest that the Legislature intended to protect innocent purchasers for value of real estate who were unable to ascertain whether or not it was subject to attachments. This court, however, cannot construe the statute in accordance with such intent in the absence of words from which it may reasonably be inferred. A majority of the court are constrained to hold that the remedy given under the statute is limited to cases where the writ has been amended, and that it has no application to the present cases.
Apart from the statute and the decision in Norris v. Anderson, supra, it appears from the findings of the trial judge that Barnett Neiterman and Barnard Neiterman are the same person. It also would seem that, as it appeared in the record of attachments that both attachments were recorded under the heading of “Neiterman,” one against Barnett Neiterman, and just under it the other against Barnard Neiterman, further reasonable investigation would have disclosed they were attachments of property of the same person. See Gifford v. Rockett, 121 Mass. 431; Ouimet v. Sirois, 124 Mass. 162; O’Connor v. Cavan, 126 Mass. 117. The findings made are not open to revision on this record; the plaintiffs’ requests were rightly refused. The final decree in each case must be affirmed.
Ordered accordingly.