Bartlett v. Moore

Braley, J. The respective answers having admitted all the plaintiff’s allegations, the replications are to be treated as waived, leaving for decision the questions, whether under the original bill complete relief should be given, and, if so, whether the cross bill can be maintained as to the remaining defendants. By the sale for the payment of debts of the intestate the real property, of which the defendant Moore as heir at law was seized of one undivided third part, was converted, and his fractional interest in the land entitles him to the same proportional share in the surplus in the administrator’s possession and control. The plaintiff, a creditor, having attached on mesne process all the heirs’ right, title and interest in an action at law on which judgment was duly rendered, and having within thirty days thereafter brought the present bill to enforce his rights, the lien of the attachment on the debtor’s share of the proceeds, which is more than enough to satisfy the judgment, although changed in form never has been dissolved and can be enforced in equity. R. L. c. 167, §§ 38, 55. Wiggin v. Heywood, 118 Mass. 514. Hill v. Hill, 196 Mass. 509, 518. R. L. c. 148, § 9. The lien thus established having been prior to any rights acquired under the attachment by trustee process of the plaintiff company in the cross bill, no case for affirmative relief in any form is made out against the plaintiff in the original bill. Story, Eq. Pl. §§ 389, 392. Slater v. Cobb, 153 Mass. 22. The prayers for relief against the defendant Moore and the defendant Folsom, the administrator summoned as trustee, cannot be granted. The company not .only has obtained judgment and execution against the debtor,' but on scire facias judgment against the [485] trustee has been entered for the amount of the judgment with costs of suit. R. L. 189, §§ 20, 45. Mechanics’ Savings Bank v. Waite, 150 Mass. 234. Brown v. Floersheim Mercantile Co. 206 Mass. 373, 376. The result is that a decree is to be entered dismissing the cross bill and ordering that the plaintiff in the original bill is entitled to the amount of his judgment with interest and costs. Ordered accordingly.