Beyer v. Dobeas

Dodge, J. Dealing first with the appeal of Dobeas, the trial court rested its decision upon the principle, supported by a great array of authority, that when an attaching creditor, by amendment or otherwise, includes in his judgment causes of action other than those secured by his attachment, he will ordinarily be deemed to have waived his attachment, as of -course he has a right to do, and to have elected to accept merely the lien and rights resulting from the judgment, which in Wisconsin, as in most states, consists of a lien on all the interest of the judgment debtor in real estate existing at the date of docketing the judgment. Clough v. Monroe, 34 N. H. 381; Page v. Jewett, 46 N. H. 441; Boyd v. Beville, 91 Tex. 439, 44 S. W. 287; Heidel v. Benedict, 61 Minn. 170, 63 N. W. 490; Willis v. Crooker, 1 Pick. 204; Adams Bank v. Anthony, 18 Pick. 238; Freeman v. Creech, 112 Mass. 180; Clark v. Foxcroft, 7 Me. 348 ; Whitney v. Brunette, 15 Wis. 61; Barth v. Graf, 101 Wis. 27, 76 N. W. 1100; Oconto Co. v. Esson, 112 Wis. 89, 87 N. W. 855. This doctrine unques [95] 'tionably is founded on the idea of protection against fraud and upon the rule that the acts of the judgment creditor will be given a construction consistent with innocent intention rather than fraudulent. This is upon the idea that a judgment for a gross amount which in fact includes sums not secured by an antecedent attachment is upon the record so connected with that attachment as prima facie to imply a claim of lien for the whole amount of the judgment as of the date ■of the attachment, and that such record, if it were allowed to have effect, f,would necessarily work a fraud, for it would assert liens and rights in property to which the judgment creditor was not entitled, thereby clouding the title, and would •disable holder of the property subject to such lien from the ordinary means of clearing his property by acts in pais. If a duly docketed judgment includes a sum for which no prior attachment was secured, the owner of the property cannot, by paying into court or to the judgment creditor the amount which was secured by the attachment, discharge the record lien and clear off the cloud. The setting up of an ostensible ■claim of the dignity and publicity of a record judgment, if false, is in itself fraudulent and oppressive, because it necessarily tends to deceive and to hinder and delay other creditors and subsequent lienholders. The law, therefore, resting on 'the presumption of innocence, assumes that, when an attaching plaintiff elects to enter a judgment inclusive of claims and ■causes of action which he could not rightfully claim to be secured by his attachment, he does so with the honest intention of thereby discharging his attachment lien and declaring that he rests exclusively upon the judgment. Counsel argues that, however correct this view with reference to the indistinguishable mingling in a judgment of the attachment debt with others, which characterized Oconto Co. v. Esson, supra, yet, when the judgment can be rendered certain by reference to the pleadings so that it can be known definitely what amount ■of indebtedness secured by the attachment is included in the [96] judgment, tbe rule ought not to apply to its full extent, but. that plaintiff should be permitted to enforce the judgment to. that extent against any property upon which the attachment lien had fastened which may have passed out of the hands of the judgment debtor at the time of the judgment. Careful examination of all the authorities upon the subject, however,, fails to disclose any recognition of such a distinction, while-some expressly or impliedly deny it. Fairfield v. Baldwin, 12 Pick. 388, 397; Peirce v. Partridge, 3 Met. 44, 49; Clark v. Foxcroft, supra. When we recall that the injury to the plaintiff results from the presence on public records of the judgment in combination with the prior attachment which together prima facie assert a lien for the full amount, and that, the same records do not of themselves convey the information necessary to a separation of the amount secured by the attachment from that not so secured, it is apparent that some portion at least of the oppression and injury which the general rule is intended' to prevent must still necessarily be suffered by the owner of the property or a subsequent lien thereon. His rights are still hindered by an obstacle which he can remove only at the expense of affirmative proceeding in court. An illustration of the predicament in which the owner of the-property is placed is presented in the present case. The judgment was for an amount approximating $1,800, of which some $500 was not entitled, to lien prior to plaintiff’s mortgage. The execution commanded the sale of exactly the same interest in the property for that additional $500 as it did for the portion of the judgment which might be ascribed to the causes of action named in the affidavit, thereby distinguishing the situation from Laighton v. Lord, 29 N. H. 237; Cutler v. Lang, 30 Fed. 173, holding that the fraud may be purged by prompt restriction of the judgment and execution to the true amount. Plaintiff could not at any time have availed himself of the convenient statutory methods of clearing the property from the legitimate lien. He could not have paid to the sheriff' [97] such, amount and imposed on him the duty to stop the sale. He could not, after the certificate of sale issued, make redemption in the manner which the statute provides as a right to one whose property is subject to such liens; and further, the deed, when issued by the sheriff, would have been an uncertain and indefinite cloud upon the plaintiff’s rights. For these reasons, and in deference to the authorities above cited, the rule of which seems to be fully adopted by this court in the Oconto Co. Case, we must conclude that the instant situation presents no exception to the general rule, but must hold that when Tibbs, Hutchings & Co. asserted their right to enter judgment for $1,800, to issue execution, and sell an interest in this property to satisfy said amount, they must be deemed to have intended to assert that right as of the date of the judgment, since a claim as of the earlier date of the ati tachment would have been a legal fraud — the assertion of a right unsupported by law and injurious to the plaintiff. That a subsequent incumbrancer is entitled 1» protection by such construction as well as a subsequent attaching plaintiff is declared in Oconto Co. v. Esson, supra, (p. 103). Turning now to the appeal of the plaintiffs, the salient facts are that their mortgage was subject to the right of the Friend Company to be paid its judgment out of this real estate. The trial court has, at most, decided that no ground has been shown by the plaintiffs to change this situation and to advance their lien over that which, confessedly both in law and equity, was prior to it. It is entirely clear that through some confusion of mind the formal title conveyed by the sheriff’s deed fails to convey the whole interest on which the Friend Company had a judgment lien by aid of its attachment. There can be no doubt that all partiés supposed the procedure was such as to accomplish that. The fact that the mortgage debt far exceeded the value of all the property renders certain the absence of any intention to sell or to buy merely some surplus above that debt. We need not decide [98] •whether the evidence discloses Such laches or .carelessness on the part of those making the sale that a court of equity would not affirmatively intervene in their behalf, for it is the plaintiffs and not the defendants who- have invoked the activities of ;the court and asked it to bring about a result whereby the plaintiffs’ interests shall be enlarged without any consideration passing from them and whereby the interest of the judgment creditor shall be practically abolished without the judgment having been paid. This is obviously a situation arousing the duty of a court of equity to impose as a condition of the ■enforcement of the plaintiffs’ rights the recognition and satisfaction of the equitable rights of others. Hammond v. Erickson, 135 Wis. 570, 116 N. W. 173. The judgment accords the plaintiffs all that they acquired by their mortgage, and we are satisfied deprives them of nothing to which they were equitably entitled. By the Court. — Judgment affirmed.