New Milford Security Co. v. Windham County Nat. Bank , 90 Conn. 323 ( 1916 )

I especially regret my inability to concur in the opinion of the court, since its conclusions avoid in large measure the results flowing from our construction of the survival statute made inCraig v. Wagner 88 Conn. 100, 89 A. 916. I can see no permissible way of avoiding the results of that construction, save by overruling that case, or by remedial legislation.

The principal questions of law presented upon the reservation and pressed in argument are: 1. Whether or not the attachment was dissolved by the death of Green. 2. Whether or not the attachment upon both real estate and stock was dissolved by the insolvency proceedings had on Green's estate. 3. Whether or not the attachment upon the real estate was invalid because the officer had failed to comply with the statute and make "an indorsement of his doings thereon" upon the copy left with the town clerk.

In conformity with our decisions, we held in Craig v. Wagner, 88 Conn. 100, 105, 106, 89 A. 916, that "under the former survival statute, the attachment was immediately dissolved by the death of a sole defendant regardless of the solvency or insolvency of his estate." But we further held, that "since the present survival statute gives to a plaintiff the right, unqualified by any limitations so far as it exists at all, to continue his pending action against the executor of a deceased defendant, we see no reason why the lien of the attachment should not also be continued, in accordance with the apparent intention of the legislature."

That decision is conclusive that Green's death did not dissolve the attachment. We thus held that the survival statute had changed the pre-existing law, and, as the reporter's head-note phrased it, "introduced a new policy respecting the survival of actions." We also held (p. 107) that "the continuance of the attachment is also in harmony with the liberal provisions of the Practice Act."

Craig v. Wagner, 88 Conn. 100, 89 A. 916, is decisive that the attachment upon Green's real estate and stock continued after his death, unless it was dissolved by virtue of General Statutes, § 279, through the insolvency proceedings had on Green's estate within sixty days after attachment. The court's conclusion that the attachment was so dissolved, is dependent wholly upon its holding that the commencement of insolvency proceedings on Green's estate within sixty days next following the attachment did dissolve it, and, as a consequence, placed this limitation upon the construction of the survival statute made in Craig v. Wagner. Reading § 279 in the light of its history and of the purposes and scope of the Act of which it is a part, this construction seems to me not even a possible one, much less a reasonable one.

As originally enacted (Public Acts of 1853, p. 102, Chap. 60, § 3) § 279, as the opinion states, "was expressly confined to proceedings instituted in the lifetime of an insolvent debtor." We find the wording of this section substantially in the Revision of 1866, so that it is admitted that, up to the Revision of 1875, this section applied to a living insolvent debtor and not to the estate of a deceased debtor. The opinion further holds that, in the Revision of 1875, the form of the original Act was changed "into a general rule applicable to all proceedings in insolvency." If the revisers did this they, concededly, made a substantial change in the structure of our statute law. They manifestly acted in violation of their legislative instructions to "as far as practicable, consolidate all Acts relating to the same subject-matter, correct ambiguities, supply all manifest omissions," etc. Revision of 1875, Preface, p. XI. "The end in view," in each of our several Revisions, "was to secure such a codification and correction of the existing law as would make it clear, certain, and reasonably uniform in operation." Hartford C. W. R. Co. v. Montague, 72 Conn. 687, 691, 45 A. 961.

JUDGE BALDWIN was as responsible for the Revision of 1875 as any member of the commission of revision. In Duffield v. Pike, 71 Conn. 521, 529, 42 A. 641, he said: "In preparing that [the Revision] of 1875 it was thought necessary to pursue a rigid policy of abbreviation and condensation, in order to keep our general laws within the compass of a volume of moderate size. . . . Revisors are presumed not to change the law, if the language which they use fairly admits of a construction which makes it consistent with the former statute." We shall not be apt to go far amiss if we assume that JUDGE BALDWIN speaks with authority and exactness concerning the purposes, motives, and work of the revisers of 1875. Similar language was used by JUDGE PRENTICE in Stapleberg v. Stapleberg, 77 Conn. 31, 35,58 A. 233, in reference to the Revision of 1888, and by CHIEF JUSTICE TORRANCE in Campbell's Appeal,76 Conn. 284, 288, 56 A. 554, in reference to the Revision of 1902.

The duty of revisers has been similarly frequently pointed out by us, and we have uniformly held to the presumption that our revisers have acted within their duty and according to their instructions. Hoyt v. Guarnieri,67 Conn. 590, 35 A. 511; State v. Ryan, 80 Conn. 582,69 A. 536; Bartram v. Hopkins, 71 Conn. 505, 517,42 A. 645; Ross v. Crofutt, 84 Conn. 370, 376,80 A. 90.

Let us examine the provisions of the Revision of 1875, relating to this matter, to ascertain whether its revisers committed so plain a breach of duty as to require us to hold that the phraseology of § 279 breaks down the presumption surrounding their work and makes reasonable no construction other than that they, in fact, changed the long-existing law. Chapter XI of Title 18, Revision of 1875, is entitled "Estates of Deceased, and Insolvent Persons." It is divided into three parts, viz., Part I, of Deceased Persons; Part II, of Insolvent Persons; Part III, General Provisions. Parts I and II are entirely independent of each other, separate chapters of the same title. All of Part II relates to the voluntary and involuntary insolvency provided for by the chapter. Among the thirty-eight sections of Part II the twenty-fifth is the section in question. Together they "comprise in the fullest sense our insolvent law." Not by its terms nor by those of any other section of Part II is the twenty-fifth section made applicable to those provisions of Parts I and III relating to the settlement of the estate of a deceased person as an insolvent estate. How, then, can it be said that revisers intended this section to relate to Parts I and III? The index separates the subjects of Part I and II. The arrangement of these subjects in the Revision clearly shows that the revisers did not intend to make this section applicable alike to insolvent debtors and to the estates of deceased persons. Part II provides two methods of settling the estate of an insolvent debtor, the one by proceedings in voluntary insolvency, the other by proceedings in involuntary insolvency, and both methods apply to the estates of the living and not the dead. Section 25 reads: "The commencement of proceedings in insolvency shall dissolve all attachments and all levies of executions not completed, made within sixty days next preceding, on the property of the insolvent debtor." This language was used in place of § 3 of chapter 60 of the Public Acts of 1853, which reads: "Whenever an assignment shall be made for the benefit of creditors, or whenever a trustee shall be appointed under the provisions of this Act, for the settlement of the estate of an insolvent debtor, all attachments of the property of such debtor, either real or personal, made at any time within sixty days preceding such assignment, or the application to the court of probate for such appointment, shall be dissolved," etc.

The making of the assignment and the appointment of the trustee were the initial steps in the proceedings in insolvency provided for in the Act of 1853, and it seems too obvious for comment that the purpose of the revisers, in the use of the words "the commencement of proceedings in insolvency," was to express in shorter form the acts which were referred to in the original statute as the commencement of the proceedings in insolvency. By the express terms of the statute the attachments which are dissolved are those only made "on the property of the insolvent debtor." This is the language of the original Act, and both there and here it refers to an attachment upon the property of the living insolvent debtor, not upon the property of a deceased insolvent debtor. Section 25 continues: "but if the property is subsequently taken from the trustee, so that it cannot be used for the benefit of the creditors of the estate, said attachments and levies of execution shall revive, and the time from the commencement of proceedings in insolvency to the time when the trustee shall be dispossessed of the property, shall be excluded from the computation in determining the continuance of the lien created by such attachment." This is a part of a single sentence which comprises a single section of this Part. The property and the attachment that it is still referring to are those referred to in the first part of the sentence. These revival provisions, the court concedes, "relate on their face exclusively to insolvency proceedings upon the estates of living debtors." How is it possible for the second third of this sentence to refer to living debtors and the first third to deceased debtors, when the same attachment and the same property attached are referred to in both parts? The third part of this sentence provides for the allowance to the attaching creditor of his legal costs "accruing before the time of the appointment of a trustee," so that every part of this section has reference solely to the attachment of the property of living debtors. If the proceedings in insolvency, referred to in the first third of this section, include the settlement of the estate of a deceased as an insolvent estate, and also the revival and cost procedure, referred to in the last two thirds of the section, why were not the revival and cost features of this section made applicable to the attachment of the property of deceased persons whose estate is in process of settlement as an insolvent estate? The same reasons exist for the one as the other.

The wording of this section in the Revision of 1875 has continued to the present time, and § 279 of the General Statutes of 1902 is § 25 of chapter 11 of Title 18 of the Revision of 1875. It is very clear there has been no change in the purpose or meaning of this statute from its origin to the present. It applies to the living, to the estates of the living in process of settlement under this Act, now chapter 23 of the General Statutes of 1902 relating to insolvent debtors. The insolvency proceeding of § 279, and the settlement of the estates of deceased persons represented as insolvent, have always been separated by chapter and title in every Revision, both after as well as before that of 1875. There is nothing in this section or in its history or that of the Act of which it is a part, which has been pointed out or which I can perceive which discloses an intention to extend the meaning of § 279 as it first appeared in the Revision of 1875, so as to include within its terms the insolvent estate of the dead.

In the Revision of 1902, chapter 23 of Title 4 relates to the estates of insolvent debtors, while chapter 29 of Title 4 relates exclusively to the estates of deceased persons settled as insolvent estates; and chapter 28 of the same title relates to the procedure for proving claims against the estates of deceased persons and against the estates of deceased represented as insolvent. Wherever this procedure can be assimilated this course is adopted, but it is noticeable that in the character of the claims allowed and in the time limited for the presentation of claims a difference is noted between these two classes. The estate of the insolvent debtor, and the estates of deceased persons represented as insolvent, are treated separately as they always have been. Section 279 is today, as it was in 1853, a part of an Act providing an insolvency proceeding for the relief of insolvent debtors. We have said our insolvent law was superseded by the Federal Bankruptcy Act. Rockville National Bank v. Latham, 88 Conn. 70,71, 89 A. 1117. We did not limit our statement to the provisions of our insolvent law relating to the estates of living debtors. We should have done this had our proceedings in insolvency included the settlement of the estates of deceased persons represented as insolvent. For the Bankruptcy Act of 1898, like all of our other Bankruptcy Acts, contains no provision for administering the estates of deceased insolvents or those represented to be insolvent. So that in the case of the estate of a deceased person represented as insolvent, the Federal Act could give no jurisdiction. Collier on Bankruptcy (1914 Ed.) p. 127. If death occurs after the adjudication in bankruptcy the estate continues in bankruptcy. Bankruptcy Act of 1898, § 8 (30 U.S. Stat. at Large, p. 549). But in this instance the settlement of the estate of this deceased as an insolvent estate succeeded his decease. It would seem that the analogy found by the court to the Federal Act must fall.

At no time since the Revision of 1875 went into effect have the proceedings in insolvency of § 279 been esteemed to include the settlement of the estates of deceased persons represented as insolvent. We had occasion to construe § 279 in Coit v. Sistare, 85 Conn. 573,577, 84 A. 119, and we there said: "Our statutes have never specifically given the attaching creditor a lien upon the attached property by virtue of the attachment. They have, however, treated the attachment as a lien, in cases of the defendant's insolvency, by providing that insolvency proceedings shall dissolve all attachments made within sixty days before the insolvency proceedings were commenced, and providing that the lien created by the attachment shall revive, if the attached property shall be taken from the trustee in insolvency, or the trust terminated by order of the court. General Statutes, § 279. A similar provision is made in the case of receiverships. General Statutes, § 1053." This language refers to the attachment of the property of living debtors. We did not then think § 279 applied to the settlement of the insolvent estate of the deceased. A reading ofCraig v. Wagner, 88 Conn. 100, 89 A. 916, on page 106, shows that we did not at that time entertain the present view of the court as to § 279. The insolvency proceeding referred to in § 279 rests upon the fact of insolvency, admitted or proved. General Statutes, 1902, § 341, provides: "The estate of any deceased person may be settled as an insolvent estate, if the court of probate deem it expedient." This form of the statute first appeared in the Revision of 1875, and it has remained in this form ever since.

Originally the settlement of the estate of a deceased person as an insolvent estate might have been had when it appeared to the executor or administrator that the estate would probably be insufficient to pay the debts of the deceased. It thus appears that the fact of insolvency was never a condition precedent to the settlement of an estate as an insolvent estate. Under § 341, whether the estate shall be so settled depends upon whether the Court of Probate shall determine that it will be the best method of settling the estate of the decedent. An optional provision of this kind bears no relation to the Federal provisions providing for a voluntary or an involuntary bankruptcy or to the voluntary or involuntary insolvency of insolvent debtors provided for by the Revision of 1902, chapter 23.

There is left to consider whether the attachment upon the real estate is invalid through the failure of the officer to comply with the statute. Prior to 1855, the officer attaching real estate was only required to leave with the person whose estate was attached, or at his usual place of abode, a true and attested copy of the writ, and of his return describing the estate by him attached. Chapter 95 of the Public Acts of 1855 (p. 117) imposed the further requirement that the officer file a certificate of attachment signed by him with the town clerk containing: a statement that the officer had made such attachment, describing the land attached, the parties to the suit, the court to which the process was returnable, and the damages claimed; and further, that the officer leave, four days after the attachment, a full and certified copy of process under which the attachment was made, with an indorsement of his doings thereon. Chapter 63 of the Public Acts of 1861 (p. 67) provided that no attachment, unless made in the manner prescribed by the Act of 1855, should be valid. These statutes were consolidated and re-enacted in a single section in the Revision of 1875 (§ 4, Chapter 2, Title 19, p. 402).

Aside from minor changes of language of no significance in meaning, and of the addition by an amendment in 1903 of one more requirement to those to be specified in the certificate of attachment, § 829 of the General Statutes of 1902 is identical with the original Act of 1855, except that: The Act of 1861 specified that no attachment not made in the manner prescribed by the Act of 1855 should be valid. While, in place of this, the Revision of 1875 substituted, "and unless the service shall be so completed, such estate shall not be holden against any other creditor or bona fide purchaser." In effect, the only difference between the 1861 provision and that of 1875 is that the former made all attachments not so made, even as against the owner, invalid, while the latter made attachments not so made invalid against creditors and bona fide purchasers only. The language "any creditor" does not mean any attaching or lienor creditor. The context and history of the Act do not admit of a limitation of this language from its natural meaning. The requirement that the officer, as a part of the service, should leave with the town clerk a full and certified copy of the process, with an indorsement of his doings, was one of the statutory conditions of service. He could not fulfil this condition by leaving a copy of process, as he did, without his indorsement, any more than by leaving his indorsement without the copy. This requirement was made a statutory condition precedent to the validity of the attachment as against creditors, and hence against this plaintiff, who stands as the representative of creditors. It was as much a condition precedent as the filing of the certificate of attachment. Neither could be dispensed with. It is beside the point whether this requirement served a wise purpose. We must presume that it did, otherwise the General Assembly would not have made it a part of the process of attachment.

The doings of the officer not indorsed upon this copy of the process were: 1. The fact that he had left the certificate of attachment with the town clerk. 2. The fact that he had made attachment of the bank shares. 3. The fact that he had made service on the New England Hat Company, the other defendant. 4. The fact that he had made service upon Green, the indorser of the note and owner of the land attached.

The purpose of the certificate of attachment was to provide a speedy method for holding the property. The purpose of leaving a copy of the process, with the officer's indorsement of his doings thereon, was to furnish all the world with notice that the attachment and service had been completed. Without this copy the searcher of the title could not know but that the certificate of attachment was nugatory; from the copy of process duly filed and indorsed he would know that service had been completed and look to the court records to ascertain the further disposition of the case. Far from being unessential and a mere matter of convenience, as the plaintiff argues, I think it was of the essence of the completed attachment and service and a mandatory provision of the statute. The creditors whose claims accrued between the time of the attachment and the death of Green may have had the special interest which an inspection of the land records would have given them in telling them of the defect in the copy of process filed with the town clerk. But the statute was not intended for their especial protection, but for that of all creditors.

The demurrer runs against the entire complaint. The complaint covers two subjects of attachment. The proper method of reaching by demurrer each cause of action stated in a single count is indicated in Practice Book, §§ 170(a) and 198 (pp. 252, 258). The first five grounds of demurrer do not relate to both subjects of attachment and are not so framed as to be capable of eliminating either from the complaint. The sixth ground of demurrer — the claim of the dissolution of the attachment by the settlement of the estate as an insolvent one — is the one ground which apparently covers both of the subjects of the attachment, and is bad against both. The seventh may relate to both subjects of attachment, but is dependent upon a decision of the sixth ground in favor of the defendant.

The court, in my opinion, should be advised that: Question 3a should be answered in the affirmative. Question 3b should be answered in the negative. Question 3c, so far as relates to the stock, should be answered in the negative. Question 3c, so far as relates to the real estate, should be answered in the affirmative, viz., that the defendant ought to be enjoined from taking out execution upon the judgment in the original suit.

The demurrer, in my opinion, should be overruled.