Braley v. French , 28 Vt. 546 ( 1856 )

The opinion of the court was delivered by

Ishamj J.

This is an action of ejectment for land in Barnard. The plaintiff claims title to the land by virtue of an attachment in his favor against Hiram Aikins et al., and the levy of liis execution on the premises. The attachment was made on the 12th of August, 1850. The defendant derives his title to the premises, under a deed from Hiram Aikins, dated November 7, 1850 ; and he insists that his title is good, as against the plaintiff’s previous attachment. It is not disputed but that Hiram Aikins was the owner of these premises at the time of the attachment, nor has any question been made as to the recovery of the judgment, or the regularity of the proceedings in the levy of the execution. The general question in the case arises, whether that attachment was legally made so as to create a valid lien on the premises, and whether that lien w&s continued, and the title of the plaintiff so perfected under it, as to give him a valid title as' against the defendant. From the return of the officer on the writ, it appears that the attachment was made by leaving a copy of the writ in the office of the town clerk in Barnard, with his return thereon, describing the property attached, and like copies in the hands of each of the defendants. That a copy of the attachment was, in fact, left with the town clerk, as stated in the return, is found in the case ; but it also appears that no record of it, or any minutes of the town clerk that it was left for that purpose, was made previous to the execution of the deed to the defendant.

Previous to the act of 1823, a lien upon real estate was created when the officer simply left a copy of the writ, with his' return thereon, with the town clerk. No other duty was required of the officer by the statute, to create a lien upon the estate. In the case of Huntington v. Cobleigh, 5 Vt. 54, Williams, J., observed, that “previous to the statute of 1823, leaving a copy with the town clerk was the attachment which created the lien, and that which gave notice to all of the incumbrance thereby created.” By the act of 1823, it was made the duty of the officer serving the writ, to cause to be recorded by the town clerk, in a book to be kept for that purpose, the substantial part of the writ, with the return of the officer. Under that act, a lien on real estate, by attachment, was not created by simply lodging a copy of the writ with the return of the officer, in the town clerk’s office, but it was also his duty to cause the same to be recorded, or, at least, to direct the same to be recorded,' and pay the legal fees therefor. Under the previous law all persons were compelled to tajee notice of an attachment when a copy had been left. But, under the statute of 1823, no constructive notice is given, unless the substance of the writ was recorded. That was the doctrine ás held in the ease of Huntington v. Cobleigh, as applicable in all cases where notice in fact of the attachment did not exist. . The provisions of the act of 1823 were, in some matters, altered in the general revision of the statutes in 1839, under which the attachment in this case was made. In that revision, therfe is no express provision that it shall be the duty of the officer to cause the attachment to be recorded. There is nothing required of the officer, in order to create a lien, by attachment, on real estate, but to leave a copy of the writ, with his return, with the town clerk ; thus re-enacting, in that particular, the provision of the statute as it existed previous to 1823. It is made the duty of the town clerk, however, whenever a copy of a writ is left with him by an officer, on which real estate has been attached, to enter in a book kept for that purpose, the names of the parties, the date of the writ, the nature of the action, the sum demanded, and the officers return thereon. We think it manifest that it was not the intention of the legislature to make that entry by the town clerk essential for the put-pose of creating a lien on the estate. If that had been their intention, they would naturally have continued the provisions of the act of 1823, which, as it was held in the case in'the 5th Yt., expressed that intention by specific provisions ; neither would they have removed the duty of causing that record to be made from the officer serving the writ, and made it the exclusive and official duty of the town clerk. So important a change in the provisions of the statute on this matter would not have been made unless it was their intention to alter the then existing law on that subject, as it had been held in the case of Huntington v. Cobleigh, 5 Vt. 54; neither would they have incorporated in the revised statutes, the provisions of the act of 1797, in its identical language, unless it was their intention to re-enact the law, as it existed under that act, and as it existed until the act of 1823. We think, therefore, that a lien on this real estate was created by the plaintiff’s attachment, when the officer left a copy of the writ, and Ms return, with the town clerk; and that this lien was unaffected by the neglect of the town clerk to enter it upon his book of records.

.But it is insisted that, if that lien existed, it was lost when the officer who served the writ withdrew that copy from the town clerk’s office, and erased from his return thereon the attachment of the real estate, and substituted an attachment of personal property. It appears from the case that, after the attachment had been made, and for the purpose of enabling the defendant to purchase the premises free from any incumbrance of that character, the officer, without the knowledge of the plaintiff, did make that erasure, and withdrew the copy altogether from the office of. the town clerk. This subject involves the inquiry as to the power of the officer over the process, and the property attached, after its service. Until the contrary appears, it is to be presumed that the attachment was made under the directions, and with the assent of the creditor. In the attachment of personal estate, the officer acquires a special property, and the right to its custody and possession. For any injury to it, the right of action is in the officer, as, in any termination of the case, he is accountable for the property either to the creditor or debtor. That special property the officer may release, so as to destroy any lien upon the property created by the attachment. He may permit the possession of the property *to remain with the debtor, in which case it can be held by a subsequent attachment, or a subsequent purchaser, free from any lien or claim of the officer upon it. His right over that property is independent of the creditor or debtor, as, in a given event, he is responsible for it to the debtor, and in another event to the creditor; and that right exists so long as that special property continues in him. But we apprehend a different rule applies in the attachment of real estate. When such an attachment is made, the officer acquires no special property in the land. He is not required or authorized to take the possession of it, nor in any event is he accountable for the property, or for its rents, incomes, or profits. This agency and authority is terminated whenever his duties are performed, for which the process was put into his hands. The lien created by the attachment, whatever may be its character, is in the creditor, and he only can release or discharge it. We think, therefore, that the lien of the .plaintiff on this real estate was not lost by that act of the officer, and that the defendant, in taking a conveyance of these premises, took the same subject to the lien of the plaintiff, under that attachment. The defendant has no reason to complain of the application of this rule. He had notice in fact, of the attachment and lien of the plaintiff, and is chargeable with the knowledge that it was not competent for the officer to discharge it. There would be no injustice, either, if the defendant had received his conveyance in ignorance of that attachment, or of the plaintiff’s lien. In that event, the question would simply be, which of these parties should have their remedy against the town clerk for his neglect to make a record of that attachment. As the plaintiff first acquired a lien upon these premises, and as that lien has ripened into a valid title to the land, we think it must prevail against the defendant’s deed ; particularly as the conveyance was taken by the defendant with notice, in fact, of the right and lien of the plaintiff upon these premises.

The declarations of Henry, the officer by whom the attachment was made, we think were improperly admitted as evidence to the jury. The'object of that testimony was to show that the attachment of the real estate was made by him, without any directions to that effect, by the plaintiff. Whether those declarations would have been admissible for that purpose, if they had been made at the time of the attachment, and when the copy of the writ was left with the town clerk, we are not called upon to decide. But, as they were made some time afterwards, and upon another occasion, they cannot be treated as a part of that transaction, and are not admissible to affect, in any way, the lien or title of the plaintiff to these premises. This view of the subject renders it unnecessary to examine other questions which were raised in the case.

The result is, that the judgment of thé county court must be reversed, and the case remanded.