Crocker v. Pierce , 31 Me. 177 ( 1850 )

Tenney, J.

It is a well settled principle, that if one having no title to lands, make a deed of the same with covenants of warranty, and he afterwards acquires a title, it will enure to the benefit of his grantee ; or the one, to whom the latter may have conveyed, with like covenants, although the first grantee may have conveyed to a stranger, after the conveyance to his grantor by the original owner. This effect upon the title results from the covenants of warranty in the deeds by way of estoppel. “ No right passeth by release, but the right, which the releasor hath at the time of the release made. For if there be father and son, and the father be disseised, and the son (living the father) releaseth by his deed to the disseisor, all the right, which he hath or may have in the same tenements, without claim of warranty, &c. and after the father dieth, &c. the son may lawfully enter upon the possession of the disseisor.” Litt. § 446. And upon the text of Littleton, Lord Coke remarks, “ the warranty may rebut and bar him and his heirs of a future right, which was not in him at that time. Co. Litt. 265, (a.) and (b.)

By the application of these principles, the conveyance from the Commonwealth of Massachusetts to the defendants would make perfect the title of Smyth by virtue of their deeds to those to whom they conveyed, and the deeds through and under which he claimed, if he had made no conveyance ; and by the deed from Smyth to the plaintiff, the title would enure to the latter, unless some other claim interposed itself to prevent it.

But it is contended for the defendants, that before the deed from Smyth to the plaintiff could take effect against Homes & Homer, by its registry, their attachment was made, and that the levy, before its expiration, gave to the creditors the same title, which would have enured to them, by the doctrine of estoppel, if they had held under a deed with covenants of warranty recorded at the time of the original attachment, and that the right of Homes & Homer passed to the defendants.

The purpose of an attachment upon mesne process is simply to secure to the creditor the property which the debtor has at the time it is made, so that it may be seised and levied upon in satisfaction of the debt, after judgment and execution may be obtained. The title to the property remains unchanged by the attachment.

An attachment can operate only upon the right of the debt- or existing at the time it is made. No interest subsequently acquired by the debtor can in any manner be affected by the return thereof, when none was in him at the time. If the levy of an execution would not be effectual to pass any title to the creditor at the time of the return of the attachment upon the original writ, the latter could have no effect. Eaton v. Whiting, 3 Pick. 484; Smith v. Peoples' Bank, 24 Maine, 185; Stat. of 1821, ch. 60, § 1; R. S. ch. 114, § 29 and 30.

We have been directed to no case, and it is believed that none can be found, where a title has been held to enure to a creditor from an attachment upon a writ by way of estoppel, as from a deed with covenants of warranty, where there is no title of the debtor, upon which the attachment can operate. Upon the principle contended for, it would be in the power of a creditor, by a return of an attachment upon mesne process, to secure to himself any interest in real estate, which his debtor might obtain subsequently thereto, if the interest should be attachable.

At the time, that Homes & Homer caused the return to be made upon the original writ, Smyth, the debtor, had no title whatever in the land, nor had he seizin or possession. If he had made no conveyance, till the title passed from the Commonwealth of Massachusetts to the defendants, the attachment would be entirely without effect against him, but the title of the Commonwealth would enure to his benefit alone. The levy of an execution at the same time, would be a nullity, and the return of full satisfaction thereon, would not prevent the issue of a new execution upon scire facias. When the levy was made upon' the execution obtained upon the judgment recovered, the title had passed from the Commonwealth of Massachusetts to the defendants, and the same enured to Smyth, and instantly to the plaintiff.

The title of the land from which the timber was taken, being in the plaintiff, by the agreement of the parties, he is entitled to recover the value of the property so taken.

Note. — Howard J. had been of counsel in the ease, and therefore took no part in the decision.