Shaubhut v. Hilton

By the Court Flahdbatt, J. This action was brought into this Court, on the appeal of some of the other Defendants, from the decree entered in the Court below, and was argued at the last term; as to those Defendants the decree was affirmed. 6 Min., 273. It only remains for us to determine whether the present Appellants occupy a position which will require a different decision as to them. In the first place, we have held that the mistake of fact upon which the bill is founded, is of a character that can be relieved against in equity. That question we will not consider as longer open. What then is the situation of the Appellants, and how are they affected by the decree. Mrs. Hilton purchased an undivided interest in the lands from Lay, before the action in which the attachment was issued was commenced. Her deed however was not recorded until after the land was seized under the attachment. She was therefore postponed by operation of the registry acts to the lien of the attachment. This would not have been the result previous to the act of August 3d, 1858, (8ess. Laws 1858, p. 116,) but since that act attachments and judgments are placed upon the same footing as conveyances for value. At this point Mrs. Hilton’s interest in the land was as entirely subordinate to the interest of the Shaubhuts as if they had claimed under first and second mortgages regularly executed and recorded in their proper order. We do not see that she can claim any superior equities by reason of her interest resting upon a conveyance for value, and that of the Shaubhut’s being based upon a forced lien. These distinctions, philosophical in themselves, are abolished by the act of 1858, whenever they arise between claimants whose priority is settled by the registry acts, and depends upon vigilance, [510] The Shaubhuts having obtained this advantage in the progress of its final consummation, commit an error, which, if irremediable, deprives them of it and postpones them to Mrs. Hilton. It is however such an error or mistake as equity will relieve against. The relief is granted; did it not restore the parties to the rights and status they enjoyed and occupied previous to the making of the mistake, it would be a mockery to call it relief at all; it would afford none.. Mrs. Hilton has invested nothing upon the supposition that this judgment was satisfied. Had she done so the case would have been very different. The effect of the decree is simply to leave her as she was relatively with the Shaubhuts before the mistake was committed. In this result we see nothing inequitable. The objections to the attachment are not well taken. It is not necessary that it should appear upon the warrant what officer allowed it to issue, nor would a slight discrepancy between the amounts stated in the warrant and that contained in the complaint affect the validity of a lien secured under it in a collateral proceeding. The defects’ suggested in the Defendant’s objection may be irregularities, but are not jurisdictional. The same may be said of the objection' urged against the admission of the j udgment roll, — the absence of a bond upon the entry of judgment. Such bond is solely for the security of the Defendant. The objection is not sufficiently broad however to reach the question of whether there was a bond filed or not, it being aimed at the fact that it did not “appear by the papers in the case that any security was filed before judgment docketed.” The decree must be affirmed as to the Appellants.