Cox v. Johns

The opinion of the court was delivered by Bennett, J. — The only question, presented for our consideration in this case, is in regard to the effect of the attachment in favor of the plaintiff against Kimball Marshall. Is it operative to create a lien on the lands in question, as against the title of the defendant, which is derived by deed from Marshall subsequent to the attachment, but prior to the levy of the plaintiff’s execution ? When real estate is attached, it is necessary by the act of 1797, that the officer serving the writ should leave with the town clerk of the town, in which the lands are situated a true and attested copy of the same “ together with a description of the estate so attached,” and by the act of 1823, it is made his duty, “ to cause to be recorded in the town clerk’s office of such town, the substantial part of such writ, together with his return thereon.” The officer certifies in his return that he caused to be left in the hands of Marshall “ a true and attested copy of the writ, with his return thereon endorsed, and also a like copy of the writ in the town clerk’s office.” There can be no doubt, it is necessary that the copy of the writ left with the town clerk, should contain a copy of the service, specifying the property attached^ Without this, no lien can be created and no notice of an incumbrance. The officer says he left “ a like copy of the writ, with the town clerk, and caused the material part [67] thereof,.to be recorded.” Does this imply, or are we to intend, that an attested copy of the service was also left with the town clerk, and the substance thereof caused to be recorded in his office ? Had the officer simply said, that he had also left “ a like copy” with the town clerk, it might with some propriety be claimed, thqt the words “ like copy,” referred as well to the service, as to the writ, and included both. But the officer has by his return tied himself down to the one, and the principle of construction, in such case,' is according to the maxim ; “ expressio unius exclusio alterius. The statute has prescribed the manner in which a lien, by attachment, can be acquired on real estate, and it must appear, affirmatively, that it has been substantially complied with. We cannot defeat the title of a-subsequenfpurchaser by creating a prior lien by intendment. The evidence must clearly and positively show that such lien does exist. In the present case the plaintiffs attachment does not, we think, show any lien on the lands in question, and the judgment of the county court must be affirmed.