First Auburn Trust Co. v. Buck

• Court: Maine Supreme Court
• Writing for the Court: MANSER, Justice
• Citation: First Auburn Trust Co. v. Buck, 137 Me. 172, 16 A.2d 258 (Me. 1940)
• Decision Date: 15 November 1940
• Parties: FIRST AUBURN TRUST CO. v. BUCK et al.

16 A.2d 258

FIRST AUBURN TRUST CO.

v. BUCK et al.

Supreme Judicial Court of Maine.

Nov. 15, 1940.

Report from Superior Court, Androscoggin County. On report.

Real action by First Auburn Trust Company against Ada C. Buck and Mabel K. Wellman to foreclose a real estate mortgage. On report.

Conditional judgment for plaintiff for amount due under mortgage ordered entered below against both defendants.

Argued before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

George C. Wing, Jr., of Auburn, for plaintiff.

Frank W. Linnell, of Auburn, for defendant Buck.

Pattangall, Goodspeed & Williamson, of Augusta, for defendant Wellman.

MANSER, Justice.

This case comes forward on report. It is a real action to foreclose a mortgage given by the defendant Wellman to the plaintiff. The defendant Buck claims title superior to that of the plaintiff, by reason of an attachment upon the real estate, subsequent judgment obtained, and the transfer of the real estate to her by sheriff's deed.

The chronology of the various steps in the proceedings is as follows:

1936:

August 22. Mortgage from defendant Wellman to Trust Co., executed and delivered.

November 28. Attachment of real estate made by officer on writ of defendant Buck, against defendant Wellman.

November 30. Record in Registry of Deeds of real estate mortgage.

December 2. Filing of certificate of attachment in the Registry of Deeds under R.S.1930 c. 95, sec. 63.

The only issue submitted for determination is whether the real estate mortgage to the plaintiff, recorded after the attachment of the property by the defendant Buck, but before the filing of the certificate of attachment in the Registry of Deeds, takes precedence over the attachment.

The statute, R.S.1930, c. 95, sec. 63, so far as it relates to the issue, is as follows:

"No attachment of real estate on mesne process creates any lien thereon, unless the nature and amount of plaintiff's demand is set forth in proper counts, or a specification thereof is annexed to the writ, nor unless the officer making it, within five days thereafter, files in the office of register of deeds in the county or district in which some part of said estate is situated, an attested copy of so much of his return on the writ, as relates to the attachment, with the value of the defendant's property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable. If the copy is not so filed within five days, the attachment takes effect from the time it is filed, if before the entry of the action, although it is after service on the defendant. * * * Provided, however, that all recorded deeds take precedence over unrecorded attachments."

It is the concluding proviso which is the crux of the matter.

It is the contention of the defendant Buck that the legislative intent was to give precedence to deeds but not to mortgages.

In considering this question, the purpose of the recording acts, as judicially ascertained and defined, is valuable in arriving at a conclusion.

It is well stated in Jordan v. Keen, 54 Me. 417, at page 421:

"It is within the memory of many of us, when no record was required of the attachment of real estate. Secret attachments were very common, and often not known or disclosed, until a levy on execution was made. In order to protect, particularly subsequent bona fide purchasers, the Legislature, in 1838, provided for the record of attachments in the registry of deeds. This operated to remedy the chief objection to secret attachments."

This case was decided in 1868. The statute at that time did not contain the proviso in question. That enactment followed in 1873, by P.L. of that year, c. 128, in these terms:

"All recorded deeds shall take precedence over unrecorded attachments, and so much of section fifty-six, chapter eighty-one of the revised statutes (1871) as is repugnant to this act, is hereby repealed."

Thus is shown a continuing legislative intent to protect, as practical experience demonstrated to be advisable, the interest of innocent parties without notice of undisclosed attachments. So we find judicial interpretation continues to hold and emphasize that, "Registry laws are designed for the protection of innocent parties, and should be so construed as to effect that object, and not operate an injustice." Swift v. Guild, 94 Me. 436, 47 A. 912, 913, 80 Am.St.Rep. 406. And again, "The statute is for the benefit and protection of all persons who have any interest in examining the record title to property to which they may thereafter become owner, either in whole or in part, absolutely or otherwise." Banton v. Shorey, 77 Me. 48.

It is to be borne in mind that, in making an attachment of real estate, there need be no overt act on the part of the officer. He does not go upon the land or make any seizure. He simply writes a return upon the writ itself. No notice need be given to anyone at the time of the attachment, and the statute allows a period of five days for filing the certificate of attachment in the Registry. Meanwhile, the owner may have sold the property to a bona fide purchaser or conveyed it in mortgage as security for money then loaned. As the statute stood before the enactment of the proviso under consideration, no search of the record title,...