Blatchford v. Conover

• Decision Date: 30 June 1885
• Citation: 1 A. 16,40 N.J.E. 205
• Parties: BLATCHFORD and others v. CONOVER.
• Court: New Jersey Supreme Court

1 A. 16

40 N.J.E. 205

BLATCHFORD and others

v. CONOVER.¹

COURT OF ERRORS AND APPEALS OF NEW JERSEY.

June Term, 1885.

On appeal from a decree of the court of chancery.

R. Wayne Parker and C. Parker, for appellants, Samuel Blatchford and others.

F. P. McDermott and C. Haight, for respondent, Wm. W. Conover.

DEPUE, J. Joseph Lloyd in 1872 was seized of a tract of land situate in the county of Monmouth. On the tenth of April, 1872, Asher Holmes, as a creditor of Lloyd, sued out of the circuit court of said county a writ of attachment against the estate of Lloyd as a non-resident debtor. This writ was duly executed by attaching the said land as Lloyd's property. Lloyd, by a deed executed May 23, 1872, and recorded May 28, 1872, conveyed the premises to Richard M. Blatchford to secure the repayment of money loaned by him to Lloyd. John E. Vanderveer, Obadiah Holmes, John S. Applegit, Marsh & Co., and others, were by rules of court admitted as applying creditors under the attachment. An auditor was appointed, judgment by default in the attachment suit on the auditor's report was entered, and an order for a sale by the auditor of the lands attached was made in the attachment suit. On the twenty-sixth of March, 1873, on the application of Lloyd, the judgment by default was opened, and his appearance entered at the suit of the plaintiff in attachment and each of the applying creditors, pursuant to the thirty-eighth section of the attachment act, without any bond being given. Thereupon the attachment proceedings were by rule of court set aside, saving all liens created by the statute.

Declarations were filed in said suits, to which the defendant filed pleas, and at January term, 1874, the suits were brought to trial, and judgments were obtained by Vanderveer, Applegit, Obadiah Holmes, and Marsh & Co. The plaintiff in the attachment did not obtain any judgment. Vanderveer's judgment was entered January 29, 1874, and on the thirtieth of January, 1874, the judgments of Applegit, Obadiah Holmes, and Marsh & Co. were entered. Upon these several judgments executions duly recorded were issued, directed to the sheriff of the county of Monmouth, and executed by him by a levy upon the same premises. The sheriff subsequently made sale of the premises under and by virtue of the said executions, and Conover became the purchaser thereof and took a sheriff's deed therefor, bearing date December 9, 1874. Conover, being in possession, filed this bill against the executors and devisees of Blatchford to have his title under the sheriff's deed declared superior to Blatchford's title under the deed from Lloyd. He claims that his title has relation to the time when the writ of attachment was issued.

The attachment act gives the writ of attachment a lien on the lands of the defendant from the time it was issued, and makes void all conveyances by him thereafter, and declares that a deed of conveyance therefor by the auditor shall convey to the purchaser the estate the defendant had at the time the writ became a lien. Revision, 45, § 18; Id. 51, § 53. The lien so created is for the benefit of the plaintiff in the attachment suit, and all creditors who may become applying creditors. Cummins v. Blair, 18 N. J. Law, 151. On the other hand, the act concerning judgments provides that no judgment shall affect or bind lands but from the time of the actual entry thereof on the minutes or records of the court. Revision, 520, § 2. Blatchford's deed is subsequent to the issuing of the writ of attachment, and prior to the entry of the judgments upon which the executions were issued under which the sheriff made sale.

The question presented is whether Conover's title taken under the sheriff's sale will have relation to the time when the writ of attachment was issued, and have the same priority it would have had if taken under a sale by the auditor in the attachment proceedings. The proceeding for the collection of debts by attachment is altogether statutory, and derives its efficacy wholly from the terms and provisions of the statute. "It has," as was said by Chief Justice BEASLEY, "no other or greater effect than such as has been, either in express terms or by reasonable intendment, given to it by the legislative will." Miller v. Dungan, 36 N. J. Law, 23. "Nothing," says Mr. Drake, "seems more distinctly to characterize the whole system of remedy by attachment than that it is a special remedy at law, belonging exclusively to a court of law, and to be resorted to and pursued in conformity with the terms of the law conferring it." Drake, Attachm. § 4a.

The attachment act in force in this state possesses peculiar features which distinguish proceedings under it from proceedings under attachment acts of sister states. In most of the other states the writ is sued out by a creditor for his benefit alone, and, no other creditor being allowed to participate in the fruits of the attachment, the property attached is sold under process of execution issued upon the judgment of the plaintiff in the attachment. The passage cited from Drake on Attachment, in which the author says that the lien of the attachment becomes merged in the plaintiffs judgment, and its priority is maintained and enforced by the judgment, is taken from the decision of a court upon a statute under which the attachment is for the benefit only of the creditor who sues out the writ, and his judgment and the execution thereon are the means provided for enforcing the lien obtained by the writ. Drake, Attachm. § 224a; Bagley v. Ward, 37 Cal. 121. Decisions upon statutes of that character have no application to our statute, under which (except where the writ is sued out of a justice's court) the proceedings are for the benefit of all the defendant's creditors, and creditors who come in under the attachment are entitled to share in the property seized under the writ on an equality with the plaintiff at whose suit the writ was issued. With respect to the property attached, and the means of enforcing the lien of the writ of attachment, the proceeding provided by the act is in rem. Only one judgment is to be entered in the attachment suit, and that judgment includes the debts found to be due to all the creditors respectively, as well those who come in under the attachment as the plaintiff by whom the writ was sued out; and the sale and conveyance of the property attached, which the statute contemplates as the execution of the lien of the writ, and as the method of transferring a title to the purchaser as of the time the writ was issued, is a sale and conveyance by the auditor, under an order to sell, made by the court in the attachment suit.

In the court below, Conover's title under the sheriff's deed seems to have been given relation as of the time the writ of attachment was issued, ex necessitate, on the theory that a sale could not be made by the auditor where the defendant had appeared to the suits of the plaintiff and the applying creditors. This opinion was based on a literal rendering of the fifty-first section of the act. That section enacts "that when judgment on the report of the auditor shall be entered against the defendant by default, the auditor may, by virtue of an order of the court for that purpose, make sale and assurance of the goods and chattels, lands and tenements, of the said defendant which were attached and taken as aforesaid, and upon which the attachment remains a lien." "The chancellor's view of this section is that under it the auditor was not empowered to sell the lands attached, except where the judgment had been entered-by default." This construction we think needlessly strict, in view of the course of legislation on this subject, the obvious purposes of the act, and the liberal construction of its provisions which the legislature has prescribed as the means of carrying into effect the legislative purpose.

Section 51 of the present act is section 21 of the act of 1798, (R. L. 360,) with the exception of the words, "and upon which the attachment remains a lien," which were inserted in the Revision of 1874. The sixteenth section of the act of 1798 provided for appearances to the suits of the plaintiff and applying creditors by filing special bail in each suit, and upon such appearances the writ of attachment and all proceedings under it were entirely set aside. No lien on property attached was saved, when upon such appearance the attachment was set aside, and in such cases there could be no sale by auditors; therefore, in directing a sale by auditors when the judgment was entered by default, the legislature used language which was descriptive of and applicable to the condition of affairs in which there was property which might be subject to a sale in proceedings under that act. In 1820 a supplement to the act of 1798 was passed, which, by the third section, provided for continuing the lien of the writ on the lands, notwithstanding the defendant appeared and filed special bail. That section prohibited the conveyance by the defendant of the lands, or any estate therein whereof he was seized or possessed or entitled unto at the time of the issuing of the writ of attachment, and enacted that the writ should, immediately on the issuing thereof, become and remain a lien on said lands as against the defendant, and all persons claiming under him by virtue of any such conveyance, until the plaintiff and the applying creditors should be satisfied of their debts, or until judgment should be rendered against the plaintiff and creditors under the attachment, or the said attachment should be discontinued, and that all conveyances pending the attachment should be void as against the plaintiff in attachment, and the creditors that should become parties thereto. R. L. 724.

The supplement of 1820 contemplated that appearances might be entered by the defendant by...