Jordan v. Keen

The only question presented to us is whether the attachment made on the writ, Auburn Bank against Charles F.- Jordan, created a lien against a subsequent purchaser. That writ contained the money counts only. This was clearly insufficient, without specifications of the demand on which the plaintiff founded his 'action and the nature and amount thereof. This is not denied. But it is contended that the specifications annexed to the writ were sufficient. And this is the question on which .the ease depends.

The specifications were, in substance, that, "the claims intended to be proved under the foregoing counts, are money obtained of plaintiffs by defendant on notes described as follows” — then follows a description of five notes, sighed or indorsed by different persons, and all bearing the name of defendant in that suit, either as signer or indorser. One of the notes is described as "bearing the names of John Megquier and Sprague Keen on the back thereof.” Accord*421ing to the description none of the notes were payable, according to their terms, at the date of the writ. The objections, as stated in the exceptions, wore that the specifications annexed were not sufficient to authorize an attachment of real estate, and because the action was brought and judgment rendered on notes, which, at the time the suit was commenced, were not due.

It becomes important, therefore, to consider the object of the statute, requiring specifications under the money counts.

It is within the momory of many of us, when no record was required of the attachment of real estate. Secret attachments were very common, and often not known or disclosed, until a levy on execution was made. In order to protect, particularly subsequent bona fide purchasers, the Legislature, in 1838, provided for the record of attachments in the registry of deeds. This operated to remedy the chief objection to secret attachments. But another difficulty was to bo guarded against. Suits wore instituted olten on a general count without any indication of the demand, or of the instruments to be offered to sustain it, or of the actual amount claimed to be due. A subsequent purchaser or attaching creditor, when he examined the records or the writ, found only a general claim, perhaps for thousands of dollars, covered by a single independent count for money had and received. It was therefore deemed just and proper, to require a more particular specification, so that any inquirer might ascertain, not merely the fact that an attachment of real estate had been made, but, approximately at least, the actual amount of the debt or claim sued; and so that the addition of new claims or the substitution of other claims, not set forth in the specifications, might be prevented.

The law has also, at a comparatively recent period, provided that a subsequently attaching creditor, who believes that a prior suit is collusive or fraudulent against him, may take the place of a colluding defendant in court and defend against the plaintiff’s claim. But there is no such provision in favor of a subsequent purchaser. If he would invalidate *422a prior attachment or levy on the ground of fraud, he can only do so in a real action, in which the title can be determined. But he can also, in such a suit, put in issue the validity of the attachment, although he does not set up any fraudulent or collusive act.or intent. But it is important to consider the grounds on which the last named objection rests. It is that he has not had sufficient notice of the nature and amount of the claim or demand on which the action is based.

In the case before us, we have no copy of the judgment, and are, therefore, ignorant of all subsequent proceedings, except that a judgment was obtained, and that an execution issued, and a levy was duly made on the premises in question. We are thus remitted to the attachment and the questions arising under it. The judgment would seem to be regular in form, and to be binding on the parties to it, until reversed on error. The specifications in this case, it is claimed, show on their face that no action could possibly be sustained under them. But this is denied.

We are not prepared to say that any specification of the grounds of claim, however incongruous or inconsistent with the nature of the action set forth in the declaration, must be held sufficient. If, for instance, under a single count for money had and received, the only specification was damages for an assault and battery, it would seem that a subsequent purchaser or attaching creditor might safely disregard the attachment. If, on the declaration and specifications, it is certain that no judgment could possibly be legally given,for the causes or claim stated in the specifications, it would, at least, seem to be unreasonable to hold that a purchaser was bound to regard the attachment on such a writ, as creating a legal lien on real estate against him. But we are not called upon to determine such an extreme case, for we do not find an example of the kind in the case before us.

The count in the writ gave notice that the plaintiffs in the suit claimed to recover money in the hands of the defendant, which he ought in equity and good conscience to pay to them. Or, as well stated by the counsel for the *423plaintiffs, — "this form of action is a simple one, and a conscientious one, and about the only thing required to maintain it is, that one man has another man’s money which he has not a right conscientiously to retain.” Under this count, the plaintiff did not specify that, to maintain it, he should offer the notes named, or claim to recover on the promises therein set forth. But the notice was that they should claim to recover under the counts " money obtained . of plaintiffs by defendant on notes, described as follows.” Nowit seems to us, that any person would at once conclude, from the peculiar language used, and from the fact that on the face of the statement, no one of the notes was due, that the claim to recover was not based on all or any one of the notes described, but on some other ground, on which the defendant could as plaintiffs believed, be held liable to refund or pay them money, arising out of some transaction relating to the notes.

We cannot say that there could not possibly bo any concurrence of circumstances, or any state of facts which would enable the plaintiffs to recover on the money counts for money obtained on notes. There are many cases of fraud, or fraudulent misrepresentations, which would justify a party in rescinding a contract and which would enable him to maintain an action to recover back money paid or lent. If money is loaned, and notes, represented as genuine, are taken as collateral security, and it is ascertained that they are forged, and the credit is given because they are considered good, may not the money be recovered back, although none of the notes or the original contract have matured and become payable by their terms ? We know nothing of the particular facts in this case. All we decide is, that we cannot say that, upon the papers before us, there was a legal impossibility of recovery by the plaintiffs. The plaintiffs in this suit had notice that the bank claimed $3000 for money obtained on notes, amount ing in all to $2459. The result is, that the exceptions must be overruled. Exceptions overruled.