Lacey v. Tomlinson

Swift, J. The question in this case, is, whether a mortgagee, by releasing all right and interest in the mortgaged premises, discharges a lien upon land, acquired by a previous attachment ? No right can pass by a release, but what exists at the [80] time of the release made. Co. Lit. 265. a. An attaching creditor acquires no title, right or interest in lands, by force oí an attachment. The attachment has no effect, but to take the land into the custody of the law, to secure it against the alienation of the debtor, and the attachment of other creditors, and to hold it to be levied upon by an execution, when judgment shall have been obtained. It is by force of the levy of the execution, that any right or title to the land is acquired. Until that time, it remains in the debtor, and he can prevent the attaching creditor from ever acquiring any title, by the payment of the debt Of course, the attaching creditor has but a mere possibility of acquiring a right; which cannot be released. This case is precisely analogous to the case of the conusee of a statute in England. Co. Lit. 265. b. A conusance there, gives a similar right to levy an execution on lands, as an attachment here ; but if the conusee release to the conusor, all his right in the ¡and, yet afterwards, he may sue execution. Barrow v. Gray, Cro. Eliz. 551. Lampets’ case. 10 Co. 47. relied upon by the counsel for the plaintiff, is not ad idem. That was a devise of a term of 5000 years, to John Momee, during life, and after his decease, to Elisabeth, who released to John, after he came into possession ; and the release was determined to be valid. Here, Elisabeth acquired a right, by the devise, subject to be defeated by the contingency of her dying before John ; but, if she survived him, the right originated from the devise. This was a contingent interest, which might, by possibility have been defeated ; but stilt, it was an intérest that could be released. But in the case under consideration, no right to the land. was created by the attachment. There was merely a possibility, that a right might have been created, by the levy of the execution ; but the right would then originate with the levy, and being a right or interest, to be acquired by a future act, could not be released, I am of opinion, that there is no error. In this opinion, all the judges concurred. Judgment affirmed