Argued June 6, 1895
Decided October 8, 1895
George Bullard for appellants. David N. Salisbury for respondents.
ANDREWS, Ch. J.
The lien of successive attachments on real property attached under process issued in this state takes effect in the order in which the attachments are issued and levied, and the priority of lien is not dependent upon priority in date of the judgments obtained. This is the general understanding and is a clear inference from statutory provisions (Code Civ. Pro. §§ 644, 697). It is also the general rule in other states, except where otherwise provided by statute, or where an exceptional rule has been established by the courts. (Drake on Attachments, § 263; Wade on Attachments, § 217.) The application of this rule as between the attachment issued in the Kelsey suit and the attachments in the suits of the Orleans County Bank and Sawyer entitles the Kelsey judgment to preferential payment out of the fund, unless for other reasons the preference must be denied. The Kelsey attachment was first issued and levied, although the judgment obtained was subsequent in date to the judgments in favor of the bank and Sawyer. There must, however, be a valid attachment to create a valid lien, and the appellants assail the attachment in the Kelsey suit on the ground that the cause of action sued upon was not one in which an attachment is authorized. It is not denied that in other respects a case was made by the affidavits presented to the judge, which justified the issuing of the process. It was held in respect of similar affidavits in the case of Buell v. Van Camp ( 119 N.Y. 160) that they were sufficient to establish the ground that Van Camp had departed from the state with intent to defraud his creditors and to avoid the service of a summons.
The record in the Kelsey suit is embraced in the record in this action. The cause of action set out in the complaint in the Kelsey suit was unmistakably for the wrongful conversion of personal property. It may have been defective, and perhaps would not have stood the test of a demurrer. But it expressly alleged a wrongful conversion by Van Camp of money of the estate, and demanded damages thereof in an amount stated. It alleged no contract, express or implied, and a cause of action on contract was not in the mind of the pleader. The affidavit used on the application for the attachment asserted that the action was brought for a wrongful conversion, and this was the cause of action recited in the warrant. It must be assumed on this appeal that the Kelsey action was an action for conversion, and not an action for money had and received, or upon contract express or implied, and upon this assumption the sufficiency of the cause of action set forth in the complaint to support the attachment as against the assault now made upon it must be determined. The defendants, whose attachments were subsequently levied, have the right to assail the Kelsey attachment, and, if invalid, to have the pretended lien vacated and the proceeds of the attached property in the hands of the sheriff applied upon their judgments. (Code Civ. Pro. sec. 682.) It, however, is fully established by authority that mere irregularities in attachment proceedings give no standing to subsequent attaching creditors to set aside a prior attachment. In the absence of fraud or collusion only defects which are jurisdictional and which so affect the proceedings as to make them a nullity, are available to a subsequent lienor who seeks to set aside a prior attachment. Irregularities may be waived by the party, and third persons cannot be heard to allege defects in the proceedings which do not concern the substance of the right. (Wade on Attachments, §§ 219, 220, and cases cited.)
The Kelsey action was in form an action for the conversion of personal property, and such an action is one in which an attachment may be granted. (Code, § 635.) The plaintiff complied with all the other conditions imposed by section 636 in making his application. He furnished affidavits stating that a cause of action existed in his favor against Van Camp for the wrongful conversion of personal property, and showing other facts necessary to be shown to entitle him to the writ. The primary objection taken by the appellants to the validity of the attachment, is not that an attachment cannot issue in an action for the conversion of personal property, nor that there were no sufficient grounds shown for granting an attachment in such an action, but that upon the facts alleged in the complaint, no cause of action against Van Camp for conversion in fact existed, but only a cause of action in equity for an accounting, and that a plaintiff whose real cause of action is one which cannot be enforced by attachment ( Thorington v. Merrick, 101 N.Y. 5), cannot, by bringing an action as upon contract or for conversion, procure an attachment which will be valid as against subsequent attachments.
It is undoubtedly the general doctrine that the remedy of the beneficiaries of a trust against a trustee where the trust is open and continuing and the accounts of the trustee have not been settled and adjusted and a balance ascertained, is in an action for an accounting in equity, and that an action at law, either for money had and received, or in any other form, will not lie in the first instance, but it is otherwise where the trust has been closed and settled and the balance ascertained. ( Weston v. Barker, 12 Jo. 276; Johnson v. Johnson, 120 Mass. 465; McLaughlin v. Swann, 18 How. [U.S.] 217; Perry on Trusts, sec. 843.) But whether a plaintiff, having the right, has brought his action in the proper form, or pursued the appropriate remedy, is a question to be determined on the trial of the action upon an issue of law or fact in case a defense is interposed. The jurisdiction to grant an attachment does not, we think, involve a preliminary determination by the officer to whom application for the writ is made, whether in law the case presented by the complaint will entitle the plaintiff to the relief he asks. It is sufficient to authorize him to grant the writ that it appears that the action is brought for one of the causes where attachment may issue, and the other facts are shown which authorize the process to be issued. All the requisite facts, both as to the cause of action and as to the fraudulent absconding of Van Camp, were presented to the judge, and we think the warrant was not void for want of jurisdiction. No application was made to set aside or vacate the writ until the present application, which was after final judgment in the action of Kelsey had been recovered. If the judgment had been obtained by fraud or collusion between the parties thereto to defeat or prejudice subsequent attachment creditors, a different question would be presented. But this was not found, nor does the record show that fraud or collusion was claimed on the trial of this action. It does appear that after the trial of the Kelsey suit had proceeded and a large amount of evidence had been taken before the referee which tended to show that Van Camp had wasted the assets of the estate, he appeared in the action and his attorney stipulated that judgment should be entered against him therein. The referee made his report in favor of the plaintiff, in which he found that the facts stated in the complaint were true, and upon the pleadings, the report of the referee, the notice of appearance by the defendant and the stipulation, judgment was entered. When the suit was commenced Van Camp had been removed as executor, and his letters had been revoked. His trust relation was terminated. It was his duty to turn over the estate in his hands to his successor in the trust. He had absconded, having, as may be inferred, wasted the assets. Whether, under the special circumstances, an action for conversion would lie against him in behalf of Kelsey, his successor in the administration, it is not important to determine. Such an action was brought, judgment found for the plaintiff, and the judgment stands unreversed and in full force. The judge granting the attachment had jurisdiction, and it was not invalid as to the present appellants.
The appellants further claim that the withdrawal of the Kelsey execution from the hands of the sheriff on the day of and before the sale of the land discharged the lien of the Kelsey attachment. We think this act in no way affected the lien. The land was sold on executions on judgments, some of which were paramount liens to that of Kelsey. Title under the sale would cut off the lien of the Kelsey attachment and judgment. By withdrawing the execution Kelsey put himself in a position where he could redeem from the sale. But if the sale brought a surplus over the prior liens it would be applicable to the payment of his judgment, and if sufficient to pay it redemption by him would not be necessary. The appellants were not prejudiced by the withdrawal of the Kelsey execution. The attachment liens were matter of record, and if the land were worth more than the liens prior to their judgments they could have protected themselves by bidding up to the value of the land.
The decision of the Special and General Terms declaring that the Brown judgment should be paid out of the fund cannot, we think, be sustained. The land was not sold on that judgment, but in legal effect was sold subject thereto. The execution on the Brown judgment was not issued until after the commencement of the publication of the notice of sale on the 29th of October, 1888. The notice was of a sale "upon executions (then) in the sheriff's hands." The postponement on the 15th of December, 1888, to the 15th of February, 1889, was of a sale "pursuant to the above notice." The Brown execution had been issued before the postponement. But the sheriff gave no notice that the sale was to be made on any execution other than those in his hands when the first publication was made. In the form of the notice of postponement was a distinct intimation that the sale was to be made in pursuance of the original notice, and not otherwise. Nor was the sale in fact made on the Brown execution. The sheriff announced at the sale that the sale was to be made on the judgments and executions of Briggs, Hallock, Buell, Orleans County Bank and Sawyer, and the sale was made on these judgments alone. The Brown judgment and execution was excluded from the enumeration. The certificate of sale specifies the judgments and executions on which the sale was made, conforming in that respect to the announcement. Moreover, the notice of sale was of the interest which Van Camp had in the land on the 11th day of June, 1888, the day when the first attachment was issued, and the Brown judgment was recovered June 17, 1882. It is shown beyond controversy that the Brown execution was not in the sheriff's hands when the publication of the notice of sale was commenced; that the sale was not advertised on that execution; that it was not made or intended to be made thereon. Although more than the requisite time of publication elapsed between the day of postponement and the sale, yet the postponement was by its terms a mere continuation of the original notice, and was not intended to refer to or include executions other than those held by the sheriff when the original publication was commenced. The case of Mascraft v. Van Antwerp (3 Cow. 334), which so far as we know has never been questioned, and which is cited in the text books, seems to be a decisive authority for the proposition that a sheriff having advertised a sale, cannot sell under that notice on an execution subsequently received by him. (See, also, Husted v. Dakin, 17 Abb. Pr. 137; Brewster v. Cropsey, 4 How. Pr. 220.)
Our conclusion is that the part of the judgment should be affirmed which awards priority of payment out of the fund to the holder of the Kelsey judgment, and that the part be reversed which awards payment out of the fund of the Brown judgment, without costs of this appeal to either party.
All concur, except HAIGHT, J., not sitting.