Cockey v. Milne's lessee

Bartol, J., delivered the opinion of this court: This is an action of ejectment, instituted by the appellee against the appellant. It is admitted that John Sinclair was seized in fee of the land in controversy, on the 1st of July 1851, and continued so seized, except as affected by the proceedings under which the parties to this suit respectively claim title. George Milne, (the plaintiff’s lessor,) on the 17th of April 1852, issued an attachment out of the Superior court of Baltimore city, against John Sinclair, upon a transcript of a record [205] of a judgment, recovered by him against Sinclair in the Superior court of the city of New York. The attachment was laid upon the property in question on the same day. Judgment of condemnation was entered on the 10th of May 1852. A writ offieri facias was issued thereon on the 11th of May 1853, and levied upon the same property, which was sold by the sheriff, and bought, by Milne (the plaintiff in the attachment) on the 10ih of June 1853, on the 3rd of June 1854, the sheriff conveyed the property to Milne, by deed duly executed, acknowledged and recorded, and upon this title the action was instituted. Two grounds of defence were taken by the appellant: 1st. That the attachment improperly issued; because the Act of 1795, ch. 56, does not authorise an attachment against the property of a non-resident,, to be issued upon a transcript of a judgment rendered in another State. 2nd. That the tide acquired by the appellee (if any) under the proceedings in attachment and the purchase from the sheriff, is subject to the superior title acquired by the defendant under the mortgage from John Sinclair, the decree in equity of the 23rd of November 1852, and the sale thereunder, made on the 29th of December 1852. Both these points were ruled against the defendant by the court below, and an instruction granted to the jury in accordance with such ruling, which is brought before us for review on this appeal. In the opinion of this court, the decision below was correct, and ought to be affirmed. The Act of 1795, ch. 56, sec. 1, gives the remedy by attachment to any citizen of this State or any other of the United States, for the recovery of any debt due him by a nonresident or absconding debtor. In order to obtain the warrant for an attachment, it is necessary for the creditor to produce a voucher of his claim, and the Act, in the enumeration of the vouchers which may be produced, includes, in general terms, uany instrument or instruments oj writing by which the debtor is so indebted.'1 ’ This language clearly embraces such a voucher as the transcript of a record of a judgment from another State. It is not only within the general scope and [206] purpose of the law, but within its very letter. What is a transcript of record but an instrument of writing evidencing the debt; an instrument of the highest and most solemn character, the verity of which cannot be impeached, or its binding force denied, except by showing that the court, from which the record comes, has exceeded its jurisdiction. This is the first time such an objection has been made since the passage of the Act of 1795, so far as we are aware; although debts on foreign judgments have been enforced by proceedings under that Act. In The Neptune Ins. Co. garnishee, vs. Montell, adm’r of Hughler, 8 Gill, 228, the voucher produced was the record of a judgment recovered at Nassau, in the Island of New Providence, and the attachment was sustained. The ground of the second objection, as stated by the appellant, is as follows: “That the appellee, who purchased the property in dispute, on the 10th of June 1853, took only the interest of the execution debtor, subject to all its equilies, and that John Sinclair, the execution debtor, ceased to have any interest in the same on the 20th of December 1852, the date of the sale by the trustee in the case of Hasbrouck vs. Sinclair and others, and had only the equity of redemption from and after November 15th, 1851, the date of the mortgage to Forster.” In support of this position, several authorities have been cited in argument, all of which have been carefully examined. But it is unnecessary particularly to notice them, as we consider them inapplicable to the present case. Whatever may be the rights acquired by a purchaser, under an execution issued upon a general judgment, in this case, where the proceeding was in r&m. by attachment, and the judgment one of condemnation of the particular property, we are clearly of opinion that the lien of the judgment was a specific lien upon the property condemned, which related back to the time when the attachment was laid, and ripened into a perfect legal title in the plaintiff, by the purchase under the execution. 7 G. & J., 429. 3 Gill, 325. 7 Md. Rep., 377. In opposition to this title, the defendant claims under the mort [207] gage executed by Sinclair to Forster, on the 15th of November 1851. That instrument was defective in two particulars. It was not acknowledged according to law, nor did it contain any affidavit of the bona fides of the consideration, as required by the Act of 1846, ch. 271. (Decided June 28th, 1860.) The law is well settled in this State that the registration of a deed defectively acknowledged, is not constructive notice to a subsequent, bona fide purchaser, and cannot affect him without actual notice. 1 Md. Rep., 403. 5 Md. Rep., 81. It is unnecessary for us, in this case, to decide whether a party claiming under an attachment levied upon the property, is entitled to the same protection as a bona fide purchaser against a prior deed defectively executed; because we consider that the want of the aflidavit, under the Act of 1846, is fatal to the validity of the mortgage from Sinclair to Forster, whether it be assailed by a creditor or a subsequent bona fide purchaser. The Act of 1846 avoids the instrument as to all persons except the grantor. In our opinion, it was designed not merely for the prevention of fraud, hut for. the benefit of creditors, who may claim against such ao iusirnment as void in law, under the Act, however the question of actual fraud may stand. This point has not before been directly decidedj but we can give no other construction to the language of the Act of Assembly, and whenever this court has been heretofore called on to construe it, we have so understood its operation, without expressly so deciding. See Charles vs. Clagett, 3 Md. Rep., 82. Fouke vs. Fleming & Douglass, 13 Md. Rep., 392. See also Waters vs. Dashiell, 1 Md. Rep., 455. In the judgment of this court, the title of the appellee, acquired under the proceedings in attachment,, was good against any title asserted under the mortgage, and was in no manner affected by the proceedings in chancery, instituted by Hasbrouck, the assignee of Forster, against Sinclair, under which the appellant’s title was acquired. The appellee was not a party to those proceedings and his right was not, in any manner, bound or affected thereby. Brooks vs. Brooke and others, 12 G. & J., 318. Duvall vs. Speed, 1 Md. Ch. Dec., 236. Judgment affirmed.