Mears v. Winslow

1 S. & M. 449

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

This bill is filed by the complainants, as creditors of E. L. Winslow, of the State of North Carolina, seeking to subject certain lands in this State, to the payment of their claim, under our chancery attachment law. It is alleged that, although the title to the land stands in the name of the defendant, Ochiltree, that, in point of fact, he holds the mere naked legal title, and that the whole beneficial interest therein is in the defendant, Winslow. After the filing of the bill, Wright and Mallet were ordered to be made parties defendant upon their petition,‘showing an interest in the subject-matter of the suit. They accordingly answered and set up claim to the land by virtue of an assignment to them, by Winslow, in trust for the payment of debts, dated in May, 1840, and filed for record in this State on the 13th of October, 1841. That to enable them to carry out the trust, Ochiltree conveyed to them the legal title, (which he held merely for the use of Wins-low) by deed, bearing date in September, 1841, and recorded at the same time with the deed of assignment from Winslow. The complainants’ bill was filed, and attachment issued on the 11th of October, 1841, and levied on the land the 9th day of the following month. The only question which arises under this state of facts is, which binds the land, the attachment, or the deed of trust. The assignment by Wiqslow, and the conveyance from Ochiltree, are to be regarded as parts of the same transaction, and, taken together, amount to nothing more than a conveyance from Winslow in trust, for the payment of his debts. Deeds of trust, under our statute, take effect as against creditors only from the time they are recorded. This deed appears to have been recorded after the issuing but before the levying of the attachment. The simple inquiry then is, at what time does the lien arising under an attachment commence ? Is it from the date of the attachment, or the date of the levy ? The counsel for the complainant insists, that it takes effect from the time of filing the bill, or issuing the attachment. I have not been able to satisfy my mind of the truth of this proposition. A bill of this description' bears no analogy whatever to a judgment creditor’s bill, who, having exhausted his legal remedies, comes here to enforce the lien which his judgment gives him, in equity, upon the equitable assets of his debtor. In such case a priority is acquired, by filing the bill. I take it to be clear, that an attaching creditor in this, as in all other kinds of attachments, acquires no right, nor interest in, nor lien upon the land of the debtor, by simply issuing out an attachment. I do not find that the law gives to this description of attachment any higher dignity, or greater efficacy, than to the ordinary attachment at law. Suppose the defendants, instead of claiming under the assignment in trust, 'had become the judgment creditors of Winslow, between the issuing and levying the attachment, the argument of the complainants’ counsel would maker the attachment overreach the lien of the judgment. And yet, in such a case, I am persuaded the priority of the judgment would be readily admitted. I think it will also be admitted, that the specific lien, created by the deed of trust, is quite as effective and comprehensive in its reach, as the general lien created by a judgment. I conclude, that the lien of an attachment commences and takes effect from the time of the levy, and not from the issuing of the attachment. This was the construction placed by the Supreme Court of Virginia upon the statute of that State, on the subject of chancery attachments, of which ours is almost a literal copy. Williamson, et al. v. Bowie, et al., 6 Munf. Rep. 176. In that case, the Court said the attachment operates from the time of the service of the proofs. The same rule was laid down by the Supreme Court of South Carolina, in the case of Stephen v. Thayer, 2 Bay’s Rep. 272. The opposite construction would be fraught with the greatest difficulty and injustice. It would even defeat a bond fide purchaser, who became such, mesne the issuing and levy of the attachment. Even if it were a proceeding in which the complainant set up title to the property, yet the notice arising from the lis pendens, would not commence until the actual service of the leading process, and of course could not affect a purchaser who became such prior to such service. Murray v. Ballou, 1 John. Ch. Rep. 576 ; 15 John. Rep. 315. From this view of the case I am of opinion, that the complainants’ bill must be dismissed at their costs. Let a decree be prepared accordingly.