Brett v. Thompson , 46 Me. 480 ( 1859 )

The opinion of the Court was drawn up by

Cutting, J.

By R. S. of 1840, c. 114, § 73, “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 specific conditions, maybe attached on mesne process.” This statute was a reenactment of the original statute of 1829, c. 431, under which this Court have decided, in Shaw v. Wise, 10 Maine, 113, that such bond is a contract merely personal, and the right, title and interest accruing under it is merely a personal right. If so, there is much force in the counsel’s position, for the defence, that the attachment was not sufficiently specific. In Stevens v. Legrow, 19 Maine, 95, an attachment of “ all the right, title, interest, estate, claim and demands of every name and nature,” Ac., was held sufficient; Chief Justice Weston remarking that, “the plaintiff having caused to be attached every claim or demand which Varney had in the county of Cumberland, those terms are broad enough to embrace his right under the contract, in virtue of the statute of 1829, c. 431.” But on this point we express no opinion, for there are further and more insuperable objections to the maintenance of this action.

It seems that the bond was given by the husband, obligating himself, upon the performance of certain conditions, to convey an estate, of which his wife in her own right was seized in fee simple. And further, that the obligee, before and at the time of the attachment, had forfeited his interest in the bond by a non-compliance with a condition precedent. Under such circumstances, in the absence of any pretended fraud, it can hardly be presumed or contended that the obligee had any attachable interest at the time of the attachment, which he could enforce. And long before the levy on the execution, he had, for a valuable consideration and bona fide, assigned the bond, after its renewal by an extension. If the assignee’s interest had been attached by Ms creditor, and the levy made on the land after the conveyance to him, the statute of 1847, § 1, cited by the demandant’s counsel, might apply. That statute has relation to the several and respective interests of the assignor and assignee; for it is “ the right, title and interest which any person has by virtue of a bond,” that is attachable. After the transfer, the purchaser becomes the “person” interested. It was enacted, probably, in order to obviate the objections raised in Aiken v. Medex, 15 Maine, 157, where it was held that a sale and not a levy was the appropriate and only mode pointed out by the former statute, notwithstanding, after the attachment, the conditions of the bond had been performed. According to the agreement of the parties, the

Demandants nonsuit.

Tenney, O. J., and Appleton, May, Davis, and Kent, J. J., concurred.