FLEISCHMAN v. BOWSER et al., 62 F. 259

PARDEE, Circuit Judge (after stating the facts). There are many adjudged cases which hold that it is essential to the validity of a levy upon an 'attachment, and of the title derived through it, that the return should state the property attached to be the property of the defendant. These cases either go upon the principle that it is the return .of the officer, and not the actual attachment of property belonging to the defendant, which gives the court jurisdiction and constitutes the foundation of the subsequent proceedings, or upon the ground that a proceeding by attachment is a statutory proceeding in derogation of the common law,

summary in character and harsh in its operation, and therefore to be strictly construed. There are also many adjudged cases to the effect that the validity of the levy upon an attachment, and of the title derived through it, are unaffected by the failure of the returning officer to state the property attached to be the property of the defendant.

The reason given for some of these decisions is that the return is made by an officer placed under great responsibility by the law which defines his duties, and he pledges to the public, under the solemnity of an oath, his integrity and diligence, and consequently every reasonable intendment must be made in favor of the regularity of his official acts.

There are still other cases to the effect that, where the sheriff returns an attachment levied on certain lands in the possession of a person not a party to the writ, it will be intended, in order to sustain the proceeding, that they were the property of the defendant, and levied on as such. It may still further be noticed that in some of the adjudged cases a distinction is made between attachments which are original, and auxiliary attachments, or those in aid of a suit already begun.

In the former, the jurisdiction of the court depending upon the validity of the execution of the writ, presumptions are not admissible in favor of a levy or return. Wade, At-tachm. § 145. Robertson v. Kinkhead, 26 Wis. 560, shows a case where the writ of attachment, in the usual form, commanded the sheriff to attach so much of the lands, etc., of the defendants, William Sturgis and Rowland Ellis, late copartners, etc. Upon this writ, the officer made return that, by virtue oí the writ; he attached certain lands, describing them as the property of Rowland Ellis.

The lauds attached were, in fact and in truili, (he property of William Sturgis, and not the property of Rowland Ellis, and the question presented to the supreme court of Wisconsin was whether the mistake of the officer, in respect of the true ownership of the lands, invalidated the attachment, so that it did not become a lien oven upon the interest of Sturgis, the real owner. The court held: “Tliat the attachment was suflicient to bind the interest of Sturgis in the real estate, notwithstanding- the mistake.

He was one of the defendants in the attachment, and his property was seized by virtue of the process of the court against him. And, although the officer made a mistake in stating in the return that the property belonged to rails, yet this should not have destroyed the effect of the attachment in respect to Sturgis. Whatever interest, he had in the lands was seized upon the writ. And the statement that the property was that of Rowland Ellis may be rejected as a mistake of the officer, or as being repugnant to the levy and more general description in the return, as was done in Fullam v.

Stearns, 30 Vt. 441 457, and Bacon v. Leonard, 4 Pick. 277.” The supreme court of the United (States holds that — - "The policy of The law does not require courts to scrutinize the proceedings of a judicial sale, with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with the legal rules, the object they were intended to accomplish.” White v. Luning, 93 U. S. 514-523; Cox v. Hart, 145 U. S. 376-387, 12 Sup. Ct. 962. The return of ihe sheriff to the writ of attachment in the case entitled Rohm Bros. & Co. v.

Fee Bros. & Co., in the district court, of Dallas county, Tex., is, "Came to hand May 6th, 1887, at 2:10 p. m. Executed tlie same day at 2:10 p. m., by levying upon all the rtght, title, and interest of Fee Bros. & Co. in and to,” — describing certain lands. The force and effect to be given this return presents the main and controlling issue in this case.

The trial judge, in instructing the jury, proceeded on the theory that the levy of the attachment was upon the right, title, and interest of Eee Bros. & Co., and not upon any right, title, or interest that the individual Fees, defendants, or any of them, particularly O. E. Fee, had in the land attached. The plaintiff in error contends that the return, to wit, “Executed by levying upon all the right, title, and interest of Foe Bros. & Co. in and to,” etc., is equivalent to, and should be held to mean, “executed by levying upon all the right, title, and interest of C. E. Fee, O. P. S. Fee, M. T. Fee, and G-eorge E.

Fee, individually and collectively, in and to,” etc., and therefore the trial judge erred in the first and fifth paragraphs of the charge given to the jury. In the record and briefs in this case there appears to be some confusion as to who were the actual parties defendant in the attachment suit entitled Bohm Bros. & Co. v. Fee Bros. & Co., in the district court of Dallas county, Tex.

This confusion apparently arises from considering the partnership of Fee Bros. & Co. as a distinct person, capable of suing and being sued, and as the real defendant in the case mentioned; the names of the members of the partnership being given as a matter of description, merely, of the party actually sued. In fact, the suit was brought and carried on against C. E. Fee, O. P. S. Fee,M. T. Pee, and G-eorge E.

Pee, and all that is said or recited in the petition, affidavit, and attachment process in this suit, as to the partnership of Pee Bros. & Co., is either descriptive of the actual defendants, or of the cause of action, or is surplusage. The writ of attachment issued in the said case cannot be misconstrued as to the actual defendants therein mentioned. It runs: “We command you that you attach forthwith so much of the property of C. E. Fee, O. P. S. Pee, M. T. Pee, and Geo. E. Pee, composing,” etc. The petition in the case of Bohm Bros. & Co. v.

Pee Bros. & Co., in the district court of Dallas county, and the answer therein filed, as they appear in the record, show that the jurisdiction of the court did not depend upon the attachment proceedings, or in any wise upon the absence or nonresidence of the defendants; the grounds for the attachment being that the defendants were about to disjiose of their property, in whole or in part, with intent to defraud their creditors.

Considering that the jurisdiction of the district court of Dallas county, Tex., was not dependent on the sufficiency of the return in question, and that the words “Pee Bros. & Co.,” “composing the firm of Fee Bros. & Co.,” are used in the suit and attachment proceedings as descriptive of the actual defendants, taken collectively, and not in any wise as representing a distinct party, and, further, considering the natural import and meaning of the words of the return, and the trend of the authorities as given above, we are of the opinion that the return in question should be taken and construed as meaning that the attachment was levied upon all the right, title, and interest of the persons composing the firm of Fee Bros. & Co., to wit, C.

E. Fee, O. P. S. Pee, M. T. Pee, and George E. Pee, the defendants in the suit. If the attachment was levied upon all the right, title, and interest of the individual Pees, composing the firm of Pee Bros. & Co., in and to the land in controversy, there can be no doubt that the attachment proceedings in the suit attached and impounded any title that C. E. Pee had in the land at the date of the levy.

As we understand the charge of the court, the jury were instructed that in the attachment proceedings in the district court of Dallas county, under the return in question, only the interest of Pee Bros. & Co., as a distinct entity, apart from the individual members composing the firm, was attached and impounded, and that any title or interest that C. E. Pee individually had in and to the land in controversy was not attached. In this we cannot concur, and therefore we are constrained to hold that the first, second, and third assignments of error are well taken.

The fourth assignment of error is that the court erred in that part of the charge to the jury which is as follows: “The defendants deraign title under D. E. Pee, in whom the legal title to the land in controversy was when the attachment above referred to was levied, on May 6, 1887,” — because the plaintiff attacked said deed to D. E. Fee for fraud, and had introduced evidence tending to show that said deed was fraudulent and void as to creditors, and the question whether or not said deed was effective to convey any title from C. E. Fee to D. E. Fee was a question for the jury.

A part of the seventh assignment of error complains of the refusal of the judge to give the following instruction, to wit: “Xou are further instructed that if you find from the testimony that the deed from O. E. Fee to D. E. Fee was without consideration, and you further find that Bohm Bros. & Go. were creditors of G. E. Fee, or of the firm of which G. E. Fee was a partner, at the time that said deed was executed, then you will find that the said deed is void as to plaintiff, and did no-t pass any title to D. E. Fee as against the plaintiff.” In Thompson v. Baker, 141 U. S. 648, 12 Sup.

Ct. 89, the supreme court held that a conveyance by a debtor in Texas of his real estate there, made with intent to delay, hinder, or defraud his creditors, being void as to the latter, under the statutes of that state, a judgment sale and transfer of said property, in an action commenced by the levy of an attachment upon it as the property of the debtor, made after the fraudulent sale, should be upheld as against a bona fide purchaser from the fraudulent grantee, taking title after the levy of the attachment.

As we have concluded that the attachment proceedings in the district court of Dallas county attached and impounded the title of C. E. Pee in the land in controversy, and as, on the trial in the court below, the conveyance of C. E. Fee to D. E.

Fee on May 6, 1887, was attacked as null and void, because made to hinder, delay, and defraud creditors, and evidence tending to show that the said deed was fraudulent and void was adduced before the jury, and as all the defendants acquired title pending the attachment proceedings in the district court of Dallas county, it follows that the question as to the fraudulent character of the deed from 0. E. Fee to D. E. Fee should have been submitted to the jury, with the particular instruction asked for by the plaixi-tiff, referred to in the second clause of the seventh assignment of error.

The other questions raised by the assignments of error do not appear to he insisted upon, and need not be considered. The judgment of the circuit court is reversed, and the cause is remanded, with instructions to grant a new trial.