Hunneman v. Lowell Inst. For Sav.

• Decision Date: 28 March 1910
• Citation: 91 N.E. 526,205 Mass. 441
• Parties: HUNNEMAN et al. v. LOWELL INSTITUTION FOR SAVINGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 441

91 N.E. 526

HUNNEMAN et al. v. LOWELL INSTITUTION FOR SAVINGS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1910

COUNSEL

Peabody & Arnold, for petitioners.

Albin L. Richards, for respondents.

OPINION

HAMMOND J.

The trial judge has found as a fact that at the time of the assgnment by the judgment creditor to the United States Surety Company, hereinafter called the 'surety company,' it was the express intention of both parties to the transaction that it should be a sale of the execution with the purpose of keeping it alive and not a 'payment under said execution.' Under this finding it must be held that the execution has not been satisfied but on the contrary is still alive. Taylor v. Van Deusen, 3 Gray, 498. Indeed the appellant does not argue to the contrary.

The execution having been placed in the officer's hands within 30 days from the judgment, the surety company had its choice either to levy upon the interest attached upon mesne process or to seize afresh on the execution. The officer's return shows that upon the execution he 'seized and took' all the right, title and interest which the judgment debtor 'had (not exempt by law from attachment or levy on execution) on the thirtieth day of June, A. D. 1908, at thirty minutes past ten o'clock a. m. (being the time the same was taken on execution) in and to the' real estate in question. It thus clearly appears that the levy was begun not upon the interest attached upon mesne process, but upon the interest existing at the time of the beginning of the levy. Several days before the foreclosure sale the right under the attachment was irretrievably lost. The right of the surety company therefore depends upon the interest acquired by the seizure upon execution of the right existing at the time of the seizure.

By this seizure the surety company secured an interest in the land. By the foreclosure sale, under the power contained in the mortgage held by the bank, this interest was turned into money. Under these circumstances the surety company had an equitable lien upon the proceeds, a right which equity will enforce if the right be promptly pursued. The money in the hands of the bank belonged to the same persons as the land before the sale. For illustration of the application of this principle see Wiggin v. Heywood, 118 Mass. 514, and cases cited; Worcester v. Boston, 179 Mass. 41, 60 N.E. 410; Knowles v. Sullivan, 182 Mass. 318, 65 N.E. 389. For a discussion of the principle and its limitations and exceptions see among other cases Gardner v. Barnes, 106 Mass. 505, Judge v. Herbert, 124 Mass. 330, and Western Union Telegraph Co. v Caldwell, 141 Mass. 489, 6 N.E. 737. The foreclosure sale took place July 28, 1908. The very next day the bill was filed. The surety company has therefore an equitable lien upon the proceeds of the sale, such lien being junior to all claims upon the land at the time the levy began.

It does not clearly appear from the facts found whether after satisfying such claims there is anything left for the petitioner. The trial judge seems to have been of opinion that the proceedings of the levy related back to the time of the attachment and not to the time of the seizure upon the execution, for he has found the incumbrances upon the property at the former time but says nothing about those at the latter time. In view, however, of the large surplus which came to the hands of the bank as the proceeds of the sale, and of the fact that the bank seems satisfied with the decree of the superior court, we infer that no matter what may be the time at which the incumbrances are considered there is enough left to pay the security company.

It is urged by the appellant that it appears that several attachments were made subsequent to that of the plaintiff, and they are not shown to have been dissolved. In his return the officer states that after seizing the real estate on execution he suspended the levy by reason of prior attachments, and that 'on the second day of July, 1908, the prior attachments above referred to having been disposed of,' he proceeded with his levy. Neither in the answer of the bank or in that of the appellant is there anything said about these attachments; nor does it appear that at the trial their existence was relied upon or was even suggested as a ground of defence. It is true that the answer of the appellant sets up, and the masster finds, that there was an attachment made by one Redding before that made by Hunneman, but the court finds that there is enough to satisfy the present claim. It is to be assumed under the circumstances that the other attachments no longer exist.

The only ground of the demurrer argued before us is that there...