Whipple v. Sheldon

The opinion of the court was delivered by TYLER, J. This case was heard upon the bill, answer and master’s report. The controversy concerns the respective interests which the parties to the suit claim to have acquired to a certain tract of land situated in Dorset; the orator by an attachment upon a suit in his favor against H. N. Paddock, the owner of the land, followed by a sale on execution; and the defendant. [199] by virtue of a deed from Paddock, executed and recorded some two days after the attachment. No. 139, Acts of 1884, does not repeal chapter 83, R. L., relating to levy of executions; it is an amendment of and an addition thereto. Sec. 1 of the-Act provides that: “ All lands and rights mentioned in Sec. 1565 of the Revised Laws, may, instead of being appraised and set-off to the creditor, be sold on ¿xecution in the manner hereinafter prescribed, and all proceedings for the satisfaction of executions by appropriation of real estate, shall be under the provisions of this act, unless the debtor shall elect in writing to proceed by appraisal and set-off as now provided by law.” It therefore appears that until the Act of 1886, No. 65, was passed, it was at the election of the debtor to have his execution creditor proceed either by appraisal and set-off under the old statute, or by sale under the new one. By the Act of 1886 the right of election was taken away and all proceedings for the satisfaction of executions by the appropriation of real estate were required to be by sale. See. 1542, R. L., provides-that real estate attached on mesne process shall be held five months after the rendition of final judgment, and no longer. It was held in Ellison v. Wilson, et al., 36 Vt. 60, that it was intended by this statute that when the five months ended, the lien by attachment ended, and that the creditor’s right to avail himself of his attachment lien also ended unless he had made a perfected levy within that time. In this case the land in dispute was sold on the execution more than seven months after the rendition of the judgment. As-the former statute, R. L. Sec. 1542, which fixed the time during which real estate attached on mesne process should be held to respond to final judgment, remained unchanged by the Act-of 1884, the orator was bound to comply with the requirements in order to preserve his attachment lien. By his failure to connect the sale on the execution with the lien created by the attachment, the. lien was lost, provided the defendant was a Iona fide purchaser.. [200] The master reports that the defendant would not have jmrcliased the Richardson farm, to which the 102-acre tract was adjacent, nor paid the price he did, but for an agreement with Paddock that the latter tract should be included in the purchase, which facts clearly import a consideration. There is no finding that the defendant acted in bad faith in making the purchase. T-Tis motive seems to have been to save his debt against Paddock. It is unnecessary to consider the other questions arising upon the report. Decree reversed and cause remanded with mandate that the hill he dismissed. Munson, J., did not sit, having been of counsel.