Kittredge v. Bellows

7 N.H. 399

Opinion

Richardson, C. J.,

delivered the opinion of the court.

Footnotes

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This case has been argued with great force and eloquence on both sides.

The plaintiff complains, that a deputy of the defendant, having in his hands the plaintiff’s writ against Phillips,'and being upon the lands of Phillips, and having an opportunity to secure plaintiff’s debt by perfecting an attachment of the land, by his negligence permitted other creditors of Phillips to gain priority of attachment, and so the plaintiff’s debt has been lost.

The first answer which the defendant gives to this complaint is, that the creditors who are supposed to have gained such priority, had notice when they made their attachments that the land had been previously attached by virtue of the plaintiff’s writ, and so in fact they gained no priority.

It is not disputed, that when those creditors went to the land in order to attach it, they had notice that the officer had been previously upon the land, for the purpose of attaching it by virtue of the plaintiff’s writ. It therefore becomes necessary to determine the legal effect of such notice.

On the part of the defendant, it is contended that the object of leaving copies with the town clerk is only to give notice of the attachment, and that as he who takes a deed of land, knowing that another has a previous unrecorded deed, cannot hold the land against the unrecorded deed, so he who makes an attachment of kind and files the copies with the town clerk, knowing that another has previously attached the land, cannot hold the land against the first attachment, although no copies may have been left with the town clerk upon that attachment.

To this it is replied, that until the copies are left with the town clerk there is no attachment of which any one can have notice ; and so this ground of defence fails altogether.

In order to settle the question thus presented, it becomes necessary to determine what an attachment of real estate is in this state ?

An attachment of land is with us a species of lien created by statute, by which the land is held to respond the debt or damage and costs which a plaintiff may recover in a suit. It is created entirely by the statute, and is just what the statute makes it, and nothing more.

It is very obvious, that as a debtor may have many creditors, all of whom have a right to secure their debts by an attachment of real estate, in prescribing the mode in which the attachment should be made it was of the highest importance to provide that it should be done in such a manner that the existence of the attachment and the time when it took effect should be easily and certainly known by all the creditors. Any uncertainty in these respects must necessarily tend greatly to embarrass creditors, and might lead to very expensive and vexatious litigations.

It seems formerly to have been understood that in order to make an attachment of land it was necessary that the officer should go upon the land. But such an entry was far from giving that publicity to the attachment which the exigency of the case required. Besides, if the officer returned upon the writ that he made the attachment on a particular day, his return could not be contradicted, although he never had been upon the land at all.

To remedy this uncertainty, the statute now provides that an entry upon the land shall not he necessary to constitute an attachment; but that the officer shall leave with the town clerk copies of the writ and return, and the town clerk shall minute on the copies the time when they were left ; and no attachment shall be considered as made until the copies are so left. This language is too clear and certain to admit a doubt. It is thus obvious that the legislature have made the very essence of the attachment to consist in placing the copies of the writ and return in a situation where they will be open to the inspection of every body. And a more safe, certain and-convenient mode of attaching real property, no human ingenuity could have invented.

Such being the meaning of the statute, it is obvious that the first ground of defence assumed by the defendant fails altogether. When the creditors who gained the priority, made their attachments, this plaintiff had acquired no right t.o the land which could be defeated by those attachments. Those creditors could not have had notice of any attachment made by the plaintiff, for no such attachment existed. ■They knew that the officer who had the plaintiff’s writ supposed he had made an attachment, but they also knew that in fact he had made none. They then had a perfect right to attach the land in the manner they did, and they gained the priority, not by fraud, nor by any unfair or improper conduct, but by the negligence or mistake of the officer who had the plaintiff’s writ.

There is no analogy between this case and that of a man who takes a conveyance of land, knowing that the land has been previously conveyed by an unrecorded deed. In that case the attempt is to defeat a vested estate in such a manner as to amount to a fraud.

In this case there is no pretence that the creditors who gained the priority in their attachments, were guilty, in so doing, of any fraud. Notwithstanding they knew the plaintiff was about to attach the land, they had a perfect right to gain a prior attachment if they could.

Another answer given by the defendant to the action is, that the creditors who gained priority in their attachments over the plaintiff, never extended their executions upon the land, so that if the plaintiff had extended his execution upon the land in season, and had discharged the mortgage, he might have saved his debt. If, therefore, he has lost his debt, it is by his own neglect, and not by that of the defendant’s deputy.

But'it appears that on the 30th May, 1825, Hooper took possession of the land under a writ of seizin, and of course, the land not being redeemed, the right, to redeem was lost on the 30th May, 1826.

The creditors who had gained the priority obtained judgment in their suits at May term, 1826, and their attachments, which continued for thirty days after judgment, must have remained upon the land until some time in June that year, that is, until after the right to redeem the land was lost.

There was, then, ño time when the plaintiff could have extended his execution and redeemed the land, without taking it subject to the attachments of those who had gained the priority. By attempting to redeem he might have defeated the arrangement those creditors made with the Hoop-ers for the sale of the land, and have compelled the creditors to extend their executions; but there is not the slightest probability that he could in any way have obtained any satisfaction of his judgment from the land.

And this seems to be a decisive answer to this ground of defence.

It is insisted that the plaintiff has lost nothing in the four-acres, which were not included in the mortgage, by the fault of the officer, and of course is not entitled to any damages on that account.

But the facts show that the four acres Were attached by virtue of the plaintiff’s writ, and that Watkins, through the neglect of the officer who had the plaintiff’s writ, obtained a priority in his attachment of that land.

The first attachment of Watkins bound the four acres, and this land stands on the same ground iii this case as that which was under mortgage.

And we are of opinion that, according to the agreement of the parties, ■

A verdict must be entered for the •plaintiff.

Parker. J., having been of counsel, did not sit.