198 Mass. 37 | Mass. | 1908
The first two cases are appeals, the one by Swain and the other by Holland, both from the same decree of the Probate Court. The third case is a bill in equity by Swain, filed in this court for the county of Suffolk. The cases were heard together by a justice of this court. In the cases on appeal from the Probate Court, the only question was whether Whittemore was entitled to be paid a certain sum out of the proceeds of the sale of certain real estate, the decree of the Probate Court being in his favor. In the bill in equity, this and other questions were involved in the hearing before the single justice, and the final decree passed upon all the questions. In the cases from the Probate Court, the single justice reversed the decree of that court, and in the equity suit the final decree was adverse to Whittemore. The cases are before us upon appeals by Whittemore from each of the decrees of the single justice.
They raise but one question, and that is, whether Whittemore, who had attached certain land in a suit in which he recovered judgment, is entitled to have the judgment satisfied out of the proceeds of the land which, pending the suit, had been sold.
The material facts may be stated as follows: One Bullock inherited from his mother an undivided interest in certain real estate. On March 6,1903, Whittemore, in a suit against him, made a valid attachment of his interest in this land, and on June 9, 1905, recovered judgment for nearly $600; and on
On May 31, 1905, which was a few days before the delivery of the deeds, and also before the judgment, Whittemore gave written notice to the commissioners “ of . . . [his] attachment and to pay no money to Bullock until the debt secured by said attachment was paid ”; and on the day of receiving the execution, June 21, 1905, or very soon thereafter, the attorney for Whittemore showed the execution to Swain, the attorney for Bullock. Swain said he had no money belonging to Bullock, and referred him to the commissioners. Whereupon Whittemore’s attorney gave to one of the commissioners notice of the execution. The commissioner replied that he would call the attention of his colleagues to the matter, but that they “ would probably pay the money into court for their own protection ”; which, in accordance with a decree passed as above stated, they subsequently did. The attorney who made these demands was neither a sheriff, deputy sheriff nor a constable. On August 19, 1905, the execution was returned into court with a statement indorsed thereon, signed by Whittemore’s attorney, that the execution never had been in the hands of an officer and was wholly unsatisfied. An alias execution was taken out on January 3, 1906, but no proceedings were had thereon. On February 8, 1906, more than six months after judgment, Whittemore filed in the Probate Court a petition reciting the proceedings he had taken and asking that his judgment be satisfied out of the proceeds of the land. The petition was opposed by one Morse, a second mortgagee, and by the trustee in bankruptcy of Bullock.
It is evident that Whittemore must stand upon his original attachment; and the precise question is whether his rights of an attaching editor have been preserved. In case there had been
In each case the order must be
Decree affirmed.