Cleaveland v. Boston Five Cents Savings Bank

Endicott, J.

The demandant in this writ of entry brought an action, in December 1874, against Elizabeth B. Howarth on a written contract dated November 7, 1874, signed “ Elizabeth B. Howarth by C. O. Manny;” and .the demanded premises, the title to which then stood in the name of Elizabeth B. Howarth, were duly attached under a general attachment of all her real estate in the county of Suffolk. After the date of this contract, and before the action upon it was brought, she was married to Charles O. Manny;. but of this fact the demandant had no knowledge until after the entry of his action against her. The case was prosecuted to judgment, execution issued thereon in March 1876, and, under a sheriff’s sale, as provided in the St. of 1874, c. 188, the demanded premises were duly conveyed to the demand-ant in June 1876. She did not plead the misnomer, and, as the action proceeded to judgment and execution, it was a waiver of the error, and the execution could properly be enforced against her, and her property taken to satisfy it. Trull v. Howland, 10 Cush. 109 . Fitzgerald v. Salentine, 10 Met. 436 . Sanford v. Hodges, 11 Gray, 485 . Langmaid v. Puffer, 7 Gray, 378 . No question is made of her identity, and, as against her, the title of the demandant is complete. In Scanlan v. Wright, 13 Pick. 523 , it was held that a deed to a married woman by her maiden name vested a title in her; she being known to the grantor only by her maiden name, and it appearing that she was the person to whom the conveyance was intended to be made, and that there was no other person claiming to bear the name used in the deed, or dlaiming title under it. Chief Justice Shaw said, “ As to the deed being made to the female petitioner, we think it is the common case of a person known by different names.”

The tenant sets up title under a mortgage deed of the demanded premises, signed and executed by Charles O. Manny and Elizabeth B. Manny in her own right, and dated and acknowledged in May 1875; and it is contended that the tenant had no means of knowing whether the demanded premises were under attachment, except from the records and copies of writs on file in the registry of deeds, as provided in the Gen. Sts. c. 123, *31 §§ 51,52; St. 1873, c. 297, § 1; that, at the time the mortgage was taken, there was no record or copies showing an attachment of the estate of Elizabeth B. Mamiy; and that the attachment actually recorded is invalid as against the mortgage.

But we are of opinion that this position is untenable. The attachment of the demanded premises, which stood in the name of Elizabeth B. Howarth, having been conveyed to her some years before her marriage, was duly made, and copies of the original writ and of the officer’s return, as provided by law, were deposited in the registry of deeds, as required in the St. of 1874, c. 293. The demandant at that time did not know that she had been married and bore another name, but he brought his action against the right person, and the property attached was her property. Nothing seems to have been omitted intentionally, which the law requires, on the part of the demandant or the officer, to make the attachment on the writ effectual. It was not the case of'-the use of the name of another person, or of the fraudulent use of a fictitious name, or of a fraudulent attempt to conceal the fact that an attachment had been made. Ouimet v. Sirois, 124 Mass. 162 . And it would seem also that, when the officer had deposited the copies in the registry, he had done all that the law required of him to do, in order to make a valid attachment, even if the record did not distinctly disclose that the attachment had been made. Sykes v. Keating, 118 Mass. 517 . But the record here did distinctly disclose that this property had been attached in the name of the person in whom the record title stood. The tenant had the means of ascertaining the attachment, and from the recitals of the mortgage deed had such knowledge of Elizabeth B. Howarth’s marriage, and of the fact that the demanded premises were conveyed to her before marriage, by a deed recorded in her maiden name, as to put it upon inquiry and search of the records after as well as before her marriage. An examination of the records for conveyances by Elizabeth B. Howarth of this property, recorded before her marriage, would not have been sufficient, for she may have made a deed while unmarried, but recorded after marriage and before the mortgage. So proper precaution required the tenant to examine the records for attachments in suits against her before marriage in her maiden name, and for attachments against her in that name after as well as before her *32 marriage. An attachment of these premises made before her marriage, on a writ against her in the name of Elizabeth B. Howarth, would not necessarily be recorded till after her marriage; for if the sheriff deposité the copies of his writ and attachment in the registry “ within three days after the day on which the attachment is made, the attachment shall take effect from the time it is made; otherwise, from the time the writ or copy is so deposited.” Gen. Sts. c. 128, § 54. This section is amended by the St. of 1860, a. 70, which provides that the attachment shall not take effect against purchasers for a valuable consideration and in good faith, until the writ or copy has been deposited.

A search, therefore, of the registry must have disclosed this attachment, although it was made on a writ dated some time after the marriage. The tenant was put upon inquiry, had the means of ascertaining the attachment, and, if it had exercised proper caution, would have known it. The tenant thus' took its mortgage subject to the attachment.

The fact that Elizabeth B. Manny made a conveyance, after her marriage and before the attachment, of other real estate in the county of Suffolk standing in her maiden name, was not constructive notice to the demandant of her marriage.

The fact that the tenant was not in possession is not decisive. The pleadings put in issue only the demandant’s title; Johnson v. Boardman, 6 Allen, 28 ; and, the case being submitted on an agreed statement of facts, it may be decided on the merits, and the only question open is whether the demandant can recover against the tenant in any form of action. Esty v. Currier, 98 Mass, 500. West Roxbury v. Minot, 114 Mass. 546 , and cases cited, As the attachment, upon the facts before us, took precedence of the mortgage, there must be Judgment for the demandant.