Gott v. Hoschna

Campbell, J. This was a bill filed in the circuit court for the county of Wayne, to set aside attachment proceedings levied on the lands of the debtor, which were covered ' by the assignment. Joseph Kuhn, on the 4th of February, 1884, made a general ¡ assignment to complainant, who accepted the trust, and! entered on its duties in proper time. The attachment of de-; fendant was levied within ten days after the assignment, ■contrary to the terms of section 8739, Howell’s Compilation, which declares that such levy shall not be valid. Defendant relies on some objections against the assignment itself, which require notice in the outset. It is claimed that the instrument purports to refer to the law of 1883 (p. 217), which has been held void by this Court, and is therefore null. It is sufficient to say that it is completely in harmony with the only existing law on that subject, which is chapter 303 of Howell; and that it has not been repudiated or set aside by the assignor, who was bound to know the law, and who is not shown to be dissatisfied. [417] It is also claimed that the attachment must prevail because made before the assignment was recorded. The statute, however, makes all such attachments void as against the ■assignment, without 'any reference to the record, and there is no law of this State to the contrary. It is also objected that a bill to quiet title will not lie under the statute without actual possession in the complainant, which is negatived as to a part of the land levied on. And it is further objected that several parcels of the land described in the bill are shown to have been sold during the pendency of this suit, and that as to those, the suit has abated. Both of those objections would have force if the suit was a statutory one for the purpose of quieting title. But such is not its nature. The statute which forbids attachment levies, points out no way whereby the assignee can move in the attachment suit to dissolve the attachment; and, in the absence of such provision, a third party cannot intervene in •a common-law action. Neither could the assignee avail himself of the special proceeding to dissolve attachments before circuit court commissioners or judges at chambers, under § 8026 of Howell’s Compilation. The right to make such application is confined to a defendant; and he must be entitled to a return of the property. It is further confined to ■cases where the plaintiff has no sufficient cause for suing out ithe writ. In the present case, the defendant could probably have shown such cause. There being no right of intervention in the law proceedings, it would be singular if the assignee had no remedy to ■avoid an attachment which he has a right to regard as void, and which, unless set aside, must greatly impair the value of ■the assigned property in the market. Where there is a serious legal wrong, with no adequate legal remedy, a court of equity would seem to be the natural resort, if the grievance is so serious as to work great mis- ■ chief. But we are not left to inference in this matter. By section 8749 it is provided that “ The circuit court in ■chancery of the proper county shall have supervisory power [418] of all matters, questions and disputes arising under such assignment, except as otherwise provided in this act, and may,, on the application of the assignee or any person interested,, make all necessary and proper orders for the management and disposition of the assigned property, the distribution of the assets and avails, the recovery of all property claimed by third persons, and may from time to time require new bonds- or sureties, who shall justify as herein provided.” We think the jurisdiction exists to remove attachments on land, and there seems to be no other adequate remedy to avoid them. Personal property may not require the same help, because there are possessory remedies at common law. And. it can make no difference whether the lands are occupied or not. The attachment is attacked as a whole, and the remedy is sought to avoid it altogether, and not merely as to partieur lar tracts of land. The decree below is substantially correct, although ifr would be better to confine it to a dissolution of the attachment itself; and it may be so modified if desired. But we are not disposed to decree costs against the defendant.. The frame of the bill might fairly lead him to believe that it was based on the ordinary rules applying, as between individuals, as to the grounds of jurisdiction, and on those he w ould have prevailed as to a part, at least, of the property. The other law questions are also novel, and he had strong moral grounds for seeking any available remedy or defense within his reach. While we do not give him costs, we think it quite proper to leave each party to pay his own costs in both courts. The assignee can have his costs ultimately out of the fund, and will not be damnified The decree will be modified accordingly. The other Justices concurred.