Opinion
04-06-1871
MAGILL v. SAUER.
Lyons and John Howard for the appellant. Steger & Sands, and Meredith, for the appellee.
1. Upon a decree in favor of an attaching creditor, and an appeal therefrom, the appellant gives an appeal bond. The giving of this bond does not release the attachment.
2. The act, Code of 1860, ch. 151, § 31, has no application to the attachment lien upon the estate of the debtor, whether it be real or personal property, or choses in action. To relieve the property attached, bond is to be given as required in § 13 of the act.
This case grew out of the next preceding case of Magill v. Manson. After an appeal had been taken by Mrs. Magill in that case, and whilst it was pending in this court, the trustee in the deed executed by Conrad Sauer, to secure the purchase money of the property purchased of Mrs. Magill, by her directions advertised the property for sale at public auction, for the payment of the purchase money, all of which had then become due. Sauer thereupon, on the 13th of December, 1870, filed his bill in the Circuit court of the city of Richmond, against Mrs. Magill and the trustee, in which he stated that Manson had attached his bonds, then in the hands of Lancaster & Co. as her agents, for the payment of his claim against Mrs. Magill, to which he had made Sauer a party defendant. He stated the decree made in the said causes. That Mrs. Magill did not pay Manson's debt, but appealed from the decree; which appeal was still pending. That since his purchase he has made costly improvements on the property, thereby greatly increasing its value. That it is not pretended by any one that the security for the money due is not ample; and Manson makes no objection to its standing on its present footing. And he prayed for an injunction to restrain the parties from making the sale of the property until the further order of the court, and for general relief.
On the 19th of December, Mrs. Magill demurred to the bill for want of equity, and also answered. She admitted the decree in the suit of Magill v. Manson, but insisted that decree had been superseded entirely by the appeal and supersedeas awarded by the Supreme Court of Appeals, and by her execution of an appeal bond in the penalty of $5,000; a copy of which she exhibited, and by the act of Assembly in such case made and provided. And she insisted that, upon the award of the appeal and the execution of the bond aforesaid, she became immediately entitled to the said bonds.
Mrs. Magill having filed her answer, to which the plaintiff replied generally, the court on the same day made an order enjoining Mrs. Magill, the trustee and all others, from proceeding to sell the real estate in the bill mentioned under the deed of trust from Sauer to secure the purchase money of the property, until the further order of the court. On the next day, upon notice to the plaintiff, the defendant, Magill, moved the court to dissolve the injunction, which had been awarded the day before; but the court overruled the motion. And thereupon Mrs. Magill applied to this court for an appeal; which was allowed.
Lyons and John Howard for the appellant.
Steger & Sands, and Meredith, for the appellee.
STAPLES, J.
The construction proper to be given to the 31st section, chap. 151, Code of 1860, is too plain to admit of doubt. In terms it applies only to personal property capable of being levied on and taken into the custody of the attaching officer. It has no application to the attachment lien upon the estate of the debtor, whether it be real or personal or choses in action. When the appeal bond provided for in that section is given, the officer in whose custody the property may be is required to restore the same to the possession of the owner; but the lien resulting from a proper levy of the attachment, is in no manner affected or impaired by the execution of the bond. If the debtor desires to discharge the lien of the attachment, he can only accomplish that object by giving bond in conformity with the provisions of the 13th section, to perform the judgment or decree of the court. The condition of the appeal bond given by the appellant in " Magill v. Manson," is, that the appellant shall perform and satisfy the decree of the court, should the same be confirmed, or the appeal and supersedeas be dismissed; and also pay all costs and damages which may be awarded against her.
That decree having been reversed at this term, and the cause remanded to the Chancery court of the city of Richmond for further proceedings, the appeal bond has discharged its functions, and no longer imposes any obligation upon the parties. The rights of Manson, however, with reference to his attachment, are not affected by such reversal. On the contrary, this court has decided that the Circuit court committed no error in refusing to dismiss the attachment.
But if the appeal bond has the effect claimed, Manson, with the decree of this court sustaining his attachment, has lost the security it afforded him, because the Circuit court erred in pronouncing a decree on the merits, instead of directing an issue to be tried by a jury. According to this logic, the appeal bond discharges the lien of the attachment, and the reversal of the decree discharges the appeal bond, so that the creditor is in a worse condition than he would have been without a decree in his favor.
A construction which leads to such results should never be adopted unless required by the imperative language of the statute. The necessary consequence of this view is, that the Circuit court did not err in refusing, in this case, to dissolve the injunction. A sale of the trust subject, and payment of the proceeds to the appellant, would not release the appellee, Sauer, from his liability to Manson, the attaching creditor, should the latter succeed in establishing his claim against the appellant.
Under these circumstances the interference of a court of equity was proper to prevent a sale until the final adjudication of the matters in controversy be tween the parties in the case of " Magill v. Manson." Any inconvenience or loss which the appellant may sustain in the meantime, in being deprived of her property, can be easily averted by giving bond to perform the decree of the court, aceording to the provisions of the 13th section, chap. 151, Code of 1860.
For these reasons I am of opinion the decree of the Circuit court, refusing to dissolve the injunction, is right, and should be affirmed with costs.
The other judges concurred in the opinion of Staples, J.
DECREE AFFIRMED.