Moore v. Kidder , 1875 N.H. LEXIS 116 ( 1875 )

Attachment in equity proceedings — Unrecorded deed. The first objection is, that the attachment and order therefor were not authorized by the laws of this state. The attachment was granted upon a bill in equity, by a single judge of the supreme judicial court in vacation, and made returnable at the law term of that court at Concord.

A complete answer to this objection, as well as the two following, seems to be furnished by the statutes. Sec. 7, of ch. 190, Gen. Stats., provides that "upon the application of any party to a suit in equity, an order may be made, when it appears to be required for his security, for a writ of attachment in his favor, in such form and returnable as the court may direct against the estate or property of any other party." And by ch. 15, Laws of 1869, this section is amended "so that the order for a writ of attachment against the estate or property of a party to a suit in equity may be made by the supreme court in term time, or any justice thereof in vacation." It is impossible to see upon what ground it can be said that the order and attachment were not authorized by the laws of this state, or that there could be any error in making it returnable at the time and place of holding a general term of the whole court.

The fourth objection is, that the attachment was general of all the real estate of Harry Downing in town, and did not specifically refer to the premises in controversy.

It is a matter of observation, that although it has doubtless been a common practice for many years to make an attachment of the real estate of a debtor by leaving with the town-clerk a return in the same form as that used here, the sufficiency of such return has never been called in question, and we have no decision directly sustaining it. I am unable to account for this upon any other ground than that the case of Howard v. Daniels, 2 N.H. 137, has been universally regarded by the profession as settling the rule, to be applied in such cases, so broadly as to leave no room for question as to the sufficiency of such return. The general doctrine there laid down is, that the description is sufficient, if by such description the land would pass in a deed. This case was decided in 1819. The exact point was raised in Massachusetts, a few years afterwards, in Taylor v. Mixter, 11 Pick. 341, where the court held that a return by an officer, that he has attached all the right and interest of the debtor in any lands in the town of E., constitutes a valid attachment of any land coming within this general description. SHAW, C. J., in delivering the opinion of the court, says, — "That such a general description is sufficient in an attachment has been decided in Maine and New Hampshire" — citing Crosby v. Allyn, 5 Greenl. 453, and Howard v. Daniels, 2 N.H. 137.

The fact that the question has not been since raised in this state would seem to show that the profession here must have taken the same view of that case as an authority. In Bryant v. Osgood, 52 N.H. 188, FOSTER, J., says, — "Probably an attachment of real estate, by leaving a copy of a return expressed in such general terms, would be held sufficient, if the point were distinctly raised, on the ground that, since the law provides for the registration of land titles, a reference to the county records would disclose the precise property referred to in the officer's return, and id certum est, c."

I am of opinion that the return must be held sufficient to create a valid lien on all the land of Downing which came within its general terms.

The plaintiff's counsel, in argument, claimed that the attachment was only of Downing's interest in lands in East Kingston, and that this makes a difference, inasmuch as Downing, in point of fact, had parted with his interest before the attachment. The material part of the return is in these words: "I attached all the real estate owned by the within named Harry Downing and Samuel Page in the town of East Kingston in said county, or either of them, or of which they have any right, title, interest, estate, or demand of, in, or unto, by leaving," c.

If the premises had been specifically described in the return, no question would be made but that the attachment must take precedence of the plaintiff's unrecorded deed. But that would be holding by attachment property to which the debtor himself could assert no title; and the hardship upon an innocent grantee would be precisely the same. By the law, priority of record is made to govern the rights of the parties; and if an attachment, which the law recognizes as valid, be once effected by leaving a copy of the writ and return at the dwelling-house of the town-clerk, it is impossible to see how such attachment can be defeated by the subsequent recording of a deed of the same premises, which had been executed before the attachment, any more because the attachment was made by a general than if it had been made by a specific description.

The fifth objection is, that the matters alleged in the bill in equity were not matters of equitable jurisdiction. It appears, from an examination of the papers made part of the case, that the attachment was made upon a writ ordered by Mr. Justice SARGENT, in a bill in equity brought by these defendants against Harry Downing and Samuel Page, which sets out the pendency of a suit at law in favor of the defendants against said Page and one Eleazer Martin, since deceased, in which said Downing was summoned as trustee of said Page Martin; that the question of the chargeability of said Downing had been referred, and was then pending before the referee; that the plaintiffs anticipated a report in their favor; that Downing, also anticipating a report against him, was intending and endeavoring to sell and dispose of, or carry away, all his property and effects open to attachment, for the express purpose of preventing the collection of any execution the plaintiffs might recover against him in that suit; and that the plaintiffs had no security for the payment of such execution. The bill also alleged, as the ground of said Downing's liability as trustee of said Page Martin, a fraudulent conveyance by them to him of their property, made in 1865, with intent to put the same beyond the reach of their creditors, and prays that said Downing be ordered to pay the plaintiffs the amount of their debt against Page Martin, and for an injunction restraining him from conveying away and disposing of his property, c.

At the September term, 1872, the plaintiffs filed a supplemental bill, setting out the report of the referee and judgment thereon against Downing as trustee for the amount of their judgment against Page Martin, being $893.77, and the further sum of $1,024.19, being costs, which the trustee was adjudged liable to pay; that the plaintiffs had no security or adequate remedy for the collection thereof, other than their attachment in said bill in equity, and praying that said Downing be decreed to pay said sum. An amendment of said supplemental bill was filed at the same term, setting out other facts not now necessary to be rehearsed. At the January term, 1873, there was a decree, in accordance with the prayer of the bill and supplemental bill, that the plaintiff recover of said Downing the amount of their judgment in the suit at law, together with the costs allowed against him as aforesaid, and an execution was issued for enforcing said decree. This is the execution upon which the levy was made, under which the defendants claim title.

It is to be observed that the attachment was made May 24, 1871, while the plaintiffs' deed was not executed until October 22, 1872, almost a year and a half afterwards; and it is claimed that she is not in a position to question the regularity or validity of the proceedings in which the attachment was issued, or of the attachment itself. But, admitting that she may do so, I am unable to discover any ground upon which her objection can be sustained. The bill distinctly charges a fraudulent intention and attempt on the part of Downing to dispose of his property and put it beyond the reach of his creditors, for the purpose of defeating the plaintiffs in the collection of any judgment they might obtain against him in a suit at law, and asks for an injunction to prevent that mischief and wrong. I think the bill very clearly shows a case for equitable interference in aid of the remedy at law. Without such interference, upon the allegations of the bill, the suit at law would be rendered fruitless by the active fraud of the defendant.

The sixth objection is, that the award made by A. P. Carpenter, referred to in the bill, was not authorized by the submission, and was void; and so the decree upon the bill in equity was void. The court have not been furnished with the submission or award, and it seems sufficiently clear that we could not go into the inquiry suggested by this objection had they been laid before us. I think the objections must all be overruled.