Poor v. Chapin , 97 Me. 295 ( 1903 )

Strout, J.

This is a writ of entry to recover several parcels of land. Demandant claims title by virtue of a sale on execution issued upon a judgment in favor of the National Hide and Leather Bank against the Monson Maine Slate Company, made on the ninth day of February, 1900. Real estate was attached upon the writ on March 23, 1898. Defendant claims title to the same lands by virtue of a sale on execution issued upon a judgment in favor of Rodney C. Penney against the Monson Maine Slate Company, made on the eleventh day of June, 1900. Real estate was attached upon the writ on September 14, 1896. The right of redemption from this sale had expired before the present suit was instituted. If the attachment in the Penney suit was duly perfected, and is valid, and the subsequent proceedings were according to law and while the attachment was subsisting, the demandant took nothing by his purchase from the sheriff, unless perhaps the right of redemption from the subsequent sale on the Penney execution.

It is very ably argued by the plaintiff’s counsel that the statute in force when these attachments were made did not authorize an attachment of real estate of a mining and manufacturing company, which the Slate Company is.

The right to attach real estate upon a writ is purely a statutory right. Chapter 60, § 2, of the laws of 1821, provided that “rights in equity of redeeming lands mortgaged, reversions or the remainders” and the lands of “any turnpike, bridge, canal or other company incorporated by law with power to receive’ toll,” might be attached on mesne process, but that statute included no other corporation, and by section 13, lands of incorporated banks could be taken on execution and sold, but an attachment of these on mesne process was not authorized. By the general repealing act in 1840, this statute was repealed, and in the chapter relating to corporations, R. S., of 1840,. c. 76, § 17, it was provided that “the corporate property of any company incorporated in this State” — “shall be liable to attachment on mesne process, and to be levied upon by execution” in the manner provided by chapters 99, 114 and 117. Chapter 94, § 34, provided that “the lands belonging to any manufacturing corporation ” — “may be seized and sold on execution.” Chapter 114, § 30, provided that all real estate liable to be taken on execution according to c. 94, may be attached on mesne process.

In the revision of 1857, all these statutes were repealed, and it was • then provided that “all real estate liable to be taken on execution” may be attached on mesne process. R. S., 1857, c. 81, § 28. But in the chapter on corporations, c. 46, § 32, it was provided that an officer having an execution against a corporation, could not levy upon its real estate, until he certified thereon that he was unable to find personal property of the corporation. Under these provisions it may well be doubted whether an attachment of the land could be made on mesne process. These provisions appear in substantially the same language in R. S., of 1871, c. 46, § 32, and c. 81, § 54.

But these provisions were repealed in the revision of 1883, and by c. 46, § 20, on corporations, it is provided that “the property of any corporation” — “ are liable to attachment on mesne process and levy on execution for debts of the corporation in the manner prescribed by law.” This statute was in force when these attachments Avere made. By the repeal of the former limitations upon the right of attachment and seizure and sale on execution of lands of corporations, and the substituted provision couched in such broad language, it is evident the legislature intended to subject corporate lands to the same liability to attachment on mesne process, as those OAvned by natural persons. This intention is so manifest that we are not authorized to import into the language any of the conditions or limitations contained in previous statutes.

It is urged that the officer’s return of attachment to the registry of deeds was insufficient to create a lien upon the land. The suit was in favor of Rodney C. Penney. The return to the registry folloAved the statute in every respect, except that it gave the name of the plaintiff as R. C. Penney. The object of the return is to give notice to parties investigating title of an attachment. This return showed an attachment of the real estate of the Monson Maine Slate Company— the important fact to the party examining the title of the Slate Company. When the examiner went to the clerk’s office to ascertain if the suit on which the attachment was made was pending, he would find a suit against the company in favor of Rodney C. Penney. It can hardly be conceived that in such case the seeker would be deceived. On the contrary, he would have ample notice of the attachment of the real estate of the Slate Company, and a pending action. This is all the statute contemplates, and all that is useful to the investigator. The cases cited are of wrong names of the defendant. It is much more necessary that the name of the party whose estate is attached should be correctly shown by the records in the registry of deeds, than that of the plaintiff. Whose estate is attached is the vital question — it is immaterial by whom it was attached, if enough is stated to enable the suit to be understandingly traced on the docket of the court. We think this condition was met by the return here, and that the attachment was perfected.

Judgment in the Penney suit was rendered at the April term of the Supreme Judicial Court, 1900. Execution duly issued, and the officer seized the lands on the fourth day of May, 1900, within thirty days after the rendition of judgment, and after giving the notices required by law, sold them to the defendant on the eleventh day of June, 1900, and gave a deed thereof in due form which ivas duly recorded.

It is objected that as the defendant was defaulted at the January term, 1897, and the action was thence continued for judgment to the succeeding term in April, and no docket entry of farther continuance for judgment at that term, the judgment should have been rendered then. If it had been, the lien of the attachment would have expired before the seizure Avas made on the execution in 1900. The docket sIioavs that the action Avas upon it at the January term, 1900, and thence continued for judgment to the April term, folloAving, when judgment was in fact entered. The statute preserves an attachment for thirty days after judgment. For Avhat reason the action remained on the docket from the April term, 1897, to the April term, 1900, does not appear, but it must be presumed that there Avas a sufficient reason for it. It did in fact so remain, for which various legal causes may be supposed. We cannot assume that it improperly remained.

It is also objected that the sale on the execution Avas made under e. 115 of the laivs of 1899, which was not in force when the attachment was made, and it is urged that the remedy existing at the time of the attachment was a vested right in the plaintiff, which must be preserved on the final process. It is sufficient to say that the officer in making the sale followed the" direction of R. S., c. 76, § 33. The sale of land on execution was authorized by sect. 42 of the same chapter.

But if the sale had been under the act of 1899 it would be good. There is no vested right to a particular form of remedy. If a substituted remedy is given, which doe’s not abridge the usefulness of that existing at the time the right accrued, there is no cause for complaint. The act of 1899 in no way defeated, limited or abridged the creditor’s remedy existing under the law when his attachment was made. Somerset Railway v. Pierce, 88 Maine, 91; Atkinson v. Dunlap, 50 Maine, 116; Oriental Bank v. Freese, 18 Maine, 109, 112, 36 Am. Dec. 701.

The sale on the Penney execution related back to the date of attachment on the writ, which was long, prior to the attachment on the writ of the Hide and Heather Bank. Under it, the defendant acquired title and the demandant has none.

Judgment for defendant.