Whittier v. Vaughan

27 Me. 301 | Me. | 1847

The opinion of the Court was drawn up by

Whitman C. J.

The original attachment on mesne process, and levy of execution, were intended to be in pursuance of the statute, c. 431, of 1829. That statute provided, that the estate, right, title and interest, which any person has, by virtue of a bond or contract in writing, to a conveyance of real •estate, upon condition to be by him performed, whether he be the original obligee or assignee of the bond or contract, shall be liable to be taken by attachment on mesne process or execution.”

It appears that True, the debtor of the plaintiff, held a bond •for the conveyance of the lot of land in question, upon the performance of certain conditions therein expressed. It appears further, that, before the plaintiff in this action made his attachment, the condition of the bond had been performed, and that True’s right to a conveyance had become absolute. The defendant, therefore insists, that, by the terms of the statute, True’s right to a conveyance was not liable to be attached ; and so that the plaintiff’s attachment and levy were void. The language of the statute by him relied upon is, “ upon condition to be by him peformed.” The defendant’s construction is, that the condition referred to in the statute, is one remaining to be performed, after attachment made; that, after the •condition has been performed, the bond becomes absolute and Is no longer a bond for the conveyance of real estate, upon condition to be performed. It may be admitted, that, if the •contract were originally absolute, in its terms, for the conveyance of real estate, it would not be within the letter of the ■statute; and perhaps not within its purview; but as to this we give no opinion. If, however, a bond be made for a conveyance upon condition, and an attachment be made after the performance of the condition, and before a conveyance had ¡been made, and such case be not within the purview of the statute, it cannot be doubted, it must be attributed to oversight on the part of the Legislature. It could not have designed to exempt estates so situated from attachment. But we apprehend when they speak of a bond, or contract upon condition to be performed, it is to be regarded as descriptive merely of the instrument, which shall authorize an attachment. If the bond or contract, when made, was upon a condition to be performed, it is within the sound construction of the statute, and authorized an attachment. Though the condition bo now performed, still it was a bond or contract on a condition to be performed. It is believed that the Legislature, in the Rev. Stat. c. 114, § 73, intended merely a re-enactment of the provision in the statute of 1829. The language is slightly varied, but doubtless intended to be of the same import. It was, that, ic all the right, title and interest, which any person has, by virtue of a bond or contract to a deed of conveyance of real estate on specified conditions,” may be attached, &c. This was manifestly intended as descriptive of the instrument, that should give such right. Whether the condition were performed or not, it would still be a bond or contract to convey on specified conditions. If the Legislature had intended a discrimination between a bond on condition not performed, and one in which it had, at the time of the attachment, been performed, they could not have failed, so to have expressed their meaning. But there could have been no good reason for rendering interests, where the condition had been performed, unattachable. It would have been to place valuable interests in estates beyond the reach of creditors, which is against the policy of the law. We cannot doubt, therefore, but that both descriptions of estates were equally comprehended under either statute.

Most of the other objections, urged by the counsel for the defendant, are obviated by the officer’s return, upon the execution. It was unnecessary for him to return, that he had given a deed to the vendee under his sale. It is sufficient that it appears he had done so by the production of the deed itself.

The amendments of the return were such as have often received the sanction of this Court. Before the amendments were made, the defendant could not have misunderstood, upon looking at the return, as it was, that the proceedings by the officer had been substantially what the amended return shows them to have been. He had no rights to be affected resembling those of a stranger thereto. He had, as the evidence abundantly shows, notice of the original attachment; yei thought proper to place himself in his present predicament.

The language complained of in the notice to account, &cM could not have misled the defendant, or have left him in any doubt of the object of it. No set form of words is necessary in such cases. On the whole, though the arguments of the defendant’s counsel, are not only elaborate, but ingenious, yet we cannot regard his conclusions as satisfactory.

Conveyance decreed as prayed for.