Crosby v. Allyn , 5 Me. 453 ( 1828 )

Meiaun C. J.

delivered the opinion of the Court.

Ryan was once the undisputed owner of the demanded premises, and both parties claim, under him by attachment and levy. As the attachment in the suit of Allyn was made prior to that in the suit of Crosby, and as the execution was levied within thirty days after judgment, and seasonably recorded, it is evident that the tenant has the better title, if all proceedings were regular in relation, to it. The first ob jection made by the demandant is that it does not appear, by the return on the original writ, that the officer who served it ever entered on the land to make the attachment. It has often been made a question whether, in such a case, a pedis possessio is necessary. As attachments are not required to be recorded or made known until the return of the writ, it seems to have been by many considered as an unmeaning ceremony' and perfectly useless; and so it appeared to the court in Perrin v. Leverett. No case has decided what ceremony, if any, is necessary to constitute an attachment of real estate ; but, whatever it is, the officer states that he did attach the estate of Ryan ; and nothing more is said in the return on the de-mandant’s writ against Ryan ; and we must therefore, as the return stands, consider that the attachment was made in the usual manner, and as creating that lien which the statute recognizes and protects, as binding on the estate attached. We therefore overrule this objection.

The demandant’s second objection is that the return is void, for uncertainty as to the description of the real estate attached. The language of the return is less accurate than usual“ all the right, title and interest the within named Ezra Ryan has to real estate in Belfast and Thorndike.” Such a general description, however, in a deed from Ryan to the creditor, would have been effectual to convey all his estate in those towns. A description may be general, or it may be special; and in both cases it may be perfectly intelligible. The object in view was to create the statute lien upon all those lands in the two towns to which Ryan had a title; and the demandant’s ob-> jection seems to be removed by the application of the principle, “ id cerium est quod cerium reddi potest.” This objection must be overruled. ^

The third objection is, that as Ryan was a tenant in common, at the time the tenant’s attachment was made of a tract of land, of which the premises demanded are á part; and as Ryan’s share, being the demanded premises, was assigned to him in severalty by judgment of court after the attachment, and before the levy of the tenant’s execution, the attachment was thereby dissolved; because Ryan’s interest or title in common had disappeared; and it is further contended that the tenant’s levy on the several property of Ryan can have no legal con-nexion with the attachment.. If such is the legal result, then it follows that the demandant has the better title; because his attachment was prior to the tenant’s levy, and it was seasonably perfected by the regular levy of his execution. Let us examine this argument. 'Before partition, Ryan’s property was bound by the attachment; because the lien extended over the whole tract; in every 'part of which he was interested as tenant in common. By the partition, his estate was not increased or lessened; but it was severed from the residue of the tract, and known by boundaries of its own; and then the lien created by the attachment was limited to the part assigned to him. During all these proceedings, however, he continued owner of the legal estate. No inference can, therefore, be drawn against the continuance of the lien, from the language of the statute cited, respecting the attachment of an equity of redemption. The lien followed the estate, in its change from common to several property. Besides, it would be a singular principle of law, that would give a tenant in common, the power of dissolving an attachment of his title in common, by obtaining partition before his creditor could obtain judgment against him. The tenant’s execution was properly extended on the several property. If the tenant could have defeated the partition in respect to the share of Ryan, by virtue of the attachment, still he has elected to consider it valid, by levying on the demanded premises, after the partition was completed; and as to the tenant and those claiming under him, as Crosby does, the levy is good, according to case of Varnum v. Abbot & al. This objection, we think, must, share the fate of the others.

On the whole, our opinion is, that the action is not by law maintainable ; and according to the agreement of the parties, the deman-dant must be called.