This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In most, if not all, of the states, there are provisions for the issuance of a writ of "attachment" as auxiliary to an action for the recovery of money, and in advance of the trial thereof, the effect of such process being to give the plaintiff a lien upon such property of the defendant as may be levied on under the writ. In most jurisdictions this writ can be obtained only for certain causes, specifically named in the statute, usually these being such as render it probable that property of the defendant sufficient to satisfy the judgment may not be legally accessible for the satisfaction of the judgment unless immediately seized. Thus it is frequently provided that an attachment may issue when the defendant has absconded, or is a nonresident, when he has made, or intends to make, a fraudulent conveyance of his property, or when he is about to remove property from the state.90 In the New England states, however, there are no such restrictions upon the issuance of an attachment, and as a rule it issues as of course upon the direction of the plaintiff. The result is that a creditor may, in these states, usually establish a lien upon the defendant's property from the time of the commencement of the suit, and this has apparently been regarded as sufficient for his protection, without the enactment of any laws providing that his judgment, when obtained, shall be a lien on the debtor's land.
Laidley v. Aiken, 80 Iowa, 112, 20 Am. St. Rep. 408, 45 N. W. 384; Ransom v. Sargent, 22 Kan. 516; Stewart v Smith, 36 Minn. 82, 1 Am. St. Rep. 651, 30 N. W. 430; Bradley v. Bryan, 43 N. J. Eq. 396, 13 Atl. 806; Haywood v. Nooney, 3 Barb. (N. Y.) 643; Cake's Appeal, 23 Pa. St. 186, 62 Am. Dec. 328. Ante, Sec. 636.
87. Clements v. Berry, 11 How. (U. S.) 398, 13 L. Ed. 745; Kel-lerman v. Aultman (C. C.) 30 Fed. 888; Davis v. Messenger, 17 Ohio St. 231; Jackson v. Luce,
14 Ohio, 514; Norfolk State Bank v. Murphy, 40 Neb. 735, 38 L. R. A. 243, 59 N. W. 706.
88. Lawson v. Jordan, 19 Ark. 297, 70 Am. Dec. 596; Bailey v. Mizell, 4 Ga. 123; Smith v. Lind, 29 III. 24; see 1 Black, Judgments, Sec. 443, and note in 38 L. R. A. 243.
89. Elwell v. Hitchcock, 41 Kan. 130, 21 Pac. 109; Reeves v. Johnson, 12 N. J. Law, 29; Fire-baugh v. Ward, 51 Tex. 409; Bailey v. Bailey, 93 Ga. 768, 21 S. E. 77.
In the absence of a statute otherwise providing, the lien of an attachment does not exist until the officer actually levies under the writ upon property of the defendant, and it extends only to the property so levied on.91 This levy does not, in the case of land, involve an actual seizure thereof, nor any interference with the possession, it being usually sufficient that the officer indorse on the writ that he has attached the land,92 describing it with such certainty as is necessary in the case of a conveyance.93 In some states, moreover, the return of the officer must be filed or recorded in a particular office in order that the attachment may bind the land as against adverse rights subsequently accruing.94
90. Drake, Attachment, Sec. 38 et seq.; Kneeland, Attachment, cc. 8-11.
91. See Cooper v. Reynolds, 10 Wall. (U. S.) 308, 19 L. Ed. 931; Shacklett's Appeal, 14 Pa. St. 326; Gray's Adm'r v. Patton's Adm'r, 13 Bush (Ky.) 625; Riordan v. Britton, 69 Tex. 198, 5 Am. St. Rep. 37, 7 So. 50; Taffts v. Man-love, 14 Cal. 47, 73 Am. Dec. 610.
92. Wood v. Weir, 5 B. Mon. (Ky.) 544; Boyle v. Ferry, 12 La. Ann. 425; Perrin v. Leverett, 13 Mass. 130; Burkhardt v. McClellan, 1 Abb. Dec. (N. Y.) 263; Lackey v. Seibert, 23 Mo. 85; Hancock v. Henderson, 45 Tex. 479.
93. Biggs v. Blue, 5 McLean, 148, Fed. Cas. No. 1,403; Roberts v. Bourne, 23 Me. 165, 39 Am. Dec. 614; Henry v. Mitchell, 32 Mo. 512; Howard v. Daniels, 2 N. H. 137; Grier v. Rhyne, 67 N. C. 338.
94. See Wheaton v. Neville, 19 Cal. 41; Raynolds v. Ray, 12 Colo. 108, 20 Pac. 4; Worcester Nat. Bank v. Cheeney, 87 III. 602; Coffin 7. Ray, 1 Mete. (Mass.) 212;
An attachment may usually be levied upon estates in land of almost every character, - both those of freehold and those less than freehold.95 The right to subject equitable interests to attachment differs in different states.96 Mortgaged land is subject to attachment in many states, either as constituting a legal interest, or by force of a special statute.97 The interest of a mortgagee before foreclosure, being a mere chose in action, is usually not attachable.98
As a general rule, the attachment lien binds only such interest as the debtor has at the time of the levy, and is subject to all rights or equities which may have accrued in favor of other persons before the date of the levy.99 Accordingly, apart from statute, an attachBryant v. Duffy, 128 Mo. 18, 30 S. W. 317.
95. Waples, Attachment (2d Ed.) Sec. 246; Drake, Attachment, Sec. 232 et seq.; Kneeland, Attachment, Sec. 361.
96. That an equitable interest is not subject to attachment, see Lowry v. Wright, 15 III. 95; Shoemaker v. Harvey, 43 Neb. 75, 61 N. W. 109; Blackburn v. Clarke, 85 Tenn. 506, 3 S. W. 505. That equitable interests are so subject, see Fish v. Fowlie, 58 Cal. 373; Davenport v. Lacon, 17 Conn. 278; Bullene v. Hiatt, 12 Kan. 98; Bailey v. Warner, 28 Vt. 87; Mc-Camant v. Batsell, 59 Tex. 363. So, in some states, the interest of the vendee under a contract of sale is attachable. Johnson v. Bell, 58 N. H. 395; Higgins v. McConnell, 130 N. Y. 482, 39 N. E. 978; Whittier v. Vaughan, 27 Me. 301.
97. Godfrey v. Monroe, 101 Cal. 224, 35 Pac. 761; Hawes' Appeal, 50 Conn. 317; Reed v. Bigelow, 5
Pick. (Mass.) 281; Eastman v. Knight, 35 N. H. 551; De Wolf v. Murphy, 11 R. I. 630.
98. McGurren v. Garrity, 68 Cal. 566, 9 Pac. 839; McLaughlin v. Shepherd, 32 Me. 143, 52 Am. Dec. 646; Marsh v. Austin, 1 Allen (Mass.) 235; Columbia Bank v. Jacobs, 10 Mich. 349, 81 Am. Dec. 792; Barrett v. Sargeant, 18 Vt. 365.
99. Tennant v. Watson, 58 Ark. 252, 24 S. W. 495; Hoag v. How ard, 55 Cal. 564; Waterman v. Buckingham, 79 Conn. 286, 64 Atl. 212; Bateman v. Backus, 4 Dak. 433, 34 N. W. 66, 68; Shirk v. Thomas, 121 Ind. 147, 16 Am. St. Rep. 381, 22 N. E. 976; Columbia Bank v. Jacobs, 10 Mich. 349, 81 Am. Dec. 792; Hope v. Blair, 105 Mo. 85, 24 Am. St. Rep. 366, 16 S. W. 595; Mahoney v. Salsbury, 83 Neb. 488, 131 Am. St. Rep. 647, 120 N. W. 144; Depeyster v. Gould, 3 N. J. Eq. 474, 29 Am. Dec. 723; Jamison v. Miller, 27 N. J. Eq. 586; Leonard v. Flemment against a trustee cannot affect the rights of a cestui que trust,1 and a conveyance or mortgage takes precedence of an attachment subsequently levied.2 In some states, however, attaching creditors, like judgment creditors,3 are within the protection of the recording acts, and are consequently not affected by prior equities, incumbrances, or conveyances, which do not appear of record, and of which they have no notice.4
The attachment lien is perfected by a judgment for plaintiff in the action to which the attachment is auxiliary, he then having a lien on the property attached, which he may enforce by a sale under execution or, in some states, by a special proceeding under the order of the court. The judgment should specifically recognize the attachment lien, and in some states its failure so to do involves a loss of the lien.5
A subsequent sale under execution upon a judgment rendered in favor of plaintiff in the suit in which the attachment was issued passes to the purchaser the interest of the judgment debtor as it existed at the time of the levy of the attachment, free from any adverse rights or claims which may have accrued since such levy.6 ing, 13 N. D. 629, 102 N. W. 308; Furman v. McMillan, 2 Lea (Tenn.) 121.
1. Tucker v. Vandermark, 21 Kan. 263; Houghton v. Davenport, 74 Me. 590; Haynes v. Jones, 5 Mete. (Mass.) 292; Dow v. Say-ward, 14 N. H. 9; Hart v. Farmers' & Mechanics' Bank, 33 Vt. 252.
2. See cases cited ante, note, 99.
3. Ante, Sec. 678.
4. Campbell v. First Nat. Bank, 22 Colo. 177, 43 Pac. 1007; Carr v. Thomas, 18 Fla. 736; Ray T. Keith, 218 III. 182, 75 N. E. 921;
Parker v. Prescott, 86 Me. 241, 29 Atl. 1007; Woodward v. Sart-well, 129 Mass. 210; Ildverson v. First State Bank of Bowbells, 24 N. D. 227, 139 N. W. 105; Wright v. Franklin Bank, 59 Ohio St. 80, 51 N. E. 876; Security Sav. & Trust Co. v. Lowenberg, 38 Ore. 159, 62 Pac. 647; Paris Grover Co. v. Burks, 101 Tex. 106, 105 S. W. 174; Bigelow v. Topliff, 25 Vt. 273, 60 Am. Dec. 264; Houston v. McCluney, 8 W. Va. 135.
5. See Waples, Attachment, Sec. 893 et seq.; 6 Corpus Juris, pp. 485, 486.
6. McClellan v. Solomon, 23