Stevens v. Legrow , 19 Me. 95 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

Nehemiah Varney, at the time of the plaintiff’s attachment, had no equity of redemption in the premises in controversy, Varney and the defendant not standing in the relation of mortgagor and mortgagee; and this is conceded by the counsel for the plaintiff. If Varney had any tangible attachable interest, it must have arisen under the contract of the defendant to convey to him, upon certain conditions. This has been held to be a mere personal right, and not a vested interest or seizin in the land. Shaw v. Wise, 1 Fairf. 133.

The plaintiff having caused to be attached every claim or demand, which Varney had in the county of Cumberland, these terms are broad enough to embrace his right under the contract, in virtue of the st. of -1829, c. 431. But in order to make the attachment effectual, this right must have been seized and sold upon the execution, which issued on the plaintiff’s judgment. Upon such a seizure and sale, the statute requires, that the same notice shall be given, and the same proceedings had, as are provided by law, upon sale on execution of an equity of redemption. But it does not prescribe, that the right sold should be described as a right in equity to redeem. This would be to deceive and mislead the debtor and such persons as might desire to become purchasers. No such right in fact existing, either upon the record or otherwise, few would be induced to purchase, and the chance of obtaining the fair and just value of the right intended to be sold would necessarily .be impaired. And, in our opinion, in order to render such seizure and sale legally effectual, the nature of the right taken, should be truly described in.the notifications and advertisement, and the deed, executed by the officer. This not having been done, but a different interest described, the plaintiff has failed to show a title in his bill, which is adjudged insufficient upon the demurrer thereto, and the defendant is allowed his costs.