Cushing v. Arnold

Dewey, J. It is contended that the levy under which the tenants claim is void and unavailing to them,, because the execution under which it was made was illegally issued. The objection taken is, that a suit, brought to recover the debt due on this judgment, was pending in court at the time when the creditors took out their execution on the judgment. The fact relied upon is very questionable, as the record shows a discontinuance of that action before the issuing of the execution ; originally, by the entry of a nonsuit and default, and subsequently, by a correction of the record, and entering [26] a nonsuit merely; which entry may properly take effect as of the date of the former entry. But independently of this matter, and however that may he, the fact of the pendency of an action on this judgment is of no importance. If a year had not expired after the rendition of the judgment, it was competent for the creditor to take out an execution, notwithstanding the pendency of an action on such judgment. The execution would be valid, though the levy of it might operate to defeat a recovery in the action. The second objection taken to the levy of the execution is, that it had not taken effect so as to divest the property of the debtor, before the institution of the proceedings in insolvency, and therefore the estate passed to the assignee. The extent of the right "of the assignee under the deed of assignment, and to what period of time it attaches, are questions now very well settled. Such deed transfers all the property of the insolvent, as held at the time of the first publication by the messenger. St. 1838, c. 163, § 5. Clarke v. Minot, 4 Met. 346. It is admitted that the levy was commenced before the petition for proceedings in insolvency was filed, but it is said that it was not completed until after publication. But, as well by statute as by the decisions of this court, the levy of an execution is to take effect from the time of the seizure on execution. Rev. Sts. c. 73, § 22. Heywood v. Hildreth, 9 Mass. 393. Waterhouse v. Waite, 11 Mass. 210. It is then suggested that the provisions of the Rev. Sts. c. 73, $ 22, are in conflict with the St. of 1838, c. 163, and that this latter statute has therefore operated to repeal the former. But we do not perceive any such conflict. The provisions of the latter statute only vest in the assignee all the rights of property of the debtor, as they exist at the time of the publication, and dissolve all attachments on mesne process, but do not dissolve any lien acquired by a seizure on execution. The third objecti m taken to the levy is founded upon the provisions of St. 1841, c. 124, $ 3, prohibiting the debtor from procuring his property to be attached, or seized on execution; and the demandant contends that, for this cause, the levy may [27] be avoided. If the effect of such agency of the debtor would, under the provisions of this statute, avoid a levy, as is contended by the demandant, yet it cannot avail here, because the fact of such agency is not admitted in the case agreed by the parties. If, however, this objection be waived, and we look at the evidence from which it is to be inferred, we see nothing to authorize us to believe that the levy of this execution was through the procuration of the debtor. Indeed every thing in the case leads to the contrary conclusion, and shows that the proceedings were, as respects the debtor, in invitum. We are earnestly invoked by the demandant to give him relief under the chancery powers conferred upon this court by § 18 of St. 1838, c. 163; and these, it is urged, may and ought to be exercised, upon two grounds. 1st. Because the seizure and levy by the tenants were in violation of the great purposes and objects of the insolvent law, viz. the equal distribution of the assets of the insolvent debtor among all his creditors. 2d. Because the tenants availed themselves of an unfair advantage, in making this levy pending a negotiation for a compromise betwmen the parties. In reference to these suggestions, it may be remarked, that an application to the chancery powers to be exercised by this court, under the statute of 1838, must be by bill, petition, or other proceeding in chancery. But the case before us is a writ of entry pending before a court of common law, and the rights of the litigant parties are to be determined upon strict principles óf law; and whatever chancery powers we may possess, if called into exercise by the proper proceedings moved in chancery, they have no proper place in the present action, in which the pure legal question arises, which party has the better legal title to the demanded premises. We have not thought it necessary to consider whether there was any violation of good faith, in the making of this levy at the time and under the circumstances stated. We have looked at the case solely in reference to the question of legal title. That title is shown to be in the tenants, they having, as judgment [28] creditors, levied their execution upon the demanded premises, before the institution of the proceedings in insolvency; and the subsequent steps to perfect the levy being all duly taken by the judgment creditors, their title takes effect from the seizure on execution. This seizure gave the tenants a priority known and recognized by law, and which the legislature have not seen fit to vacate by any statute enactment. The assignee, therefore, acquired no title to the demanded premises by the deed of assignment from the master in chancery. Demandant nonsuit.