Sawyer, J., also dissenting. For the following reasons, in addition to those stated in the opinion of Mr. Justice Shafter, I am unable to concur in the views expressed by a majority of the Court upon the principal question involved in the case:
In many of the States the process of attachment was originally adopted as a means of compelling the appearance of nonresident and other debtors, upon whom the ordinary process of the Courts could not be served. Upon the appearance and putting in of bail in the manner required by the practice then in force with respect to other process, the attachment was dis solved. In many instances the remedy was extended to cases where debtors were fraudulently concealing, removing or otherwise disposing of their property with an intent to defraud their creditors. In California the remedy has been extended over a wider field, and it seems to proceed upon a theory different from the attachment laws of any,other State. The design of our law seems to be, not merely to reach non-resident and absconding debtors, or to circumvent fraud, but to afford the creditor, upon the statutory conditions, a security [375]for every demand not otherwise secured, arising upon contract for the direct payment of money made in the State, in which there has been a default in payment. Security to the vigilant seems to be the leading idea upon which the law is framed. The moment the attachment is levied, a lien upon the property attach qd is acquired. The lien becomes specific, and the party acquires a right to have any amount that may be found due upon the contract satisfied out of the specific property. It is a right vested upon the conditions prescribed by the statute. The law favors the diligent, and not those who sleep on their rights. The plaintiff incurred the costs of a suit to secure the right given by the statute, and by this means acquired for himself, to the exclusion of all others, the statutory lien on the defendant’s property, and a right to be first paid out of its proceeds. This right became vested, and being once vested should not be divested, unless by virtue of some express statutory provision, or by necessary implication from provisions bearing upon the subject matter. I have not found any express provision of the statute to the effect, that the attachment shall be dissolved by the death of the defendant before judgment. If any such result can be deduced from the various statutes, it must be by remote, and not very apparent, or satisfactory inferences. That a specific lien has been once secured, there can be no doubt. “I see no reason why the lien acquired by attaching a particular piece of land should not be considered as much a specific lien, as if acquired by the voluntary act of the debtor.” (Carter v. Champion, 8 Conn. 559.) “ An attachment constitutes a lien—a real interest in the land, which may be followed up to a perfect title.” (Mr. Chief Justice Shaw, in Smith v. Bradstreet, 16 Pick. 265.) It is well settled, that the levy of an attachment constitutes a lien within the meaning of that term as used in the Bankrupt Act of 1841. (Kittredge v. Warren, 14 N. H. 510 ; Vreeland v. Bruen, 1 Zab. 222; Davenport v. Tilton, 10 Met, 320 ; Peck v. Jenness, 7 How. U. S. 612.) The observations of Mr. Chief Justice Parker, in the first case cited, are not inappropriate to the question now under consideration. He says (14 N. H. [376530]): “ So far as it relates to the question whether an attachment is a lien or security, it is not necessary to add anything to what has been already said upon that subject. If this lien or security were contingent or conditional, it is not perceived why that should take it out of the express language of the proviso, which includes all liens and securities, valid by the laws of the State. The fact that it is dependent upon, and may be defeated by a contingency, does not make it anything the less a lien or security so long as it exists. But the existence of the lieu or security is, in our view, in no way contingent, conditional or inchoate. Its existence does not depend upon the judgment. It exists, in its full force, from the moment the attachment is made, as much so as a lien by judgment, upon the rendition of the judgment, in the States where that security is recognized. As we have already seen, it fastens itself upon, and binds the property at once, giving priority of right, and, in the case of personal property, authorizing the Sheriff, for the benefit of the creditor, to hold the possession, to maintain actions, and in some cases even to sell and dispose §f the property itself, before either a default or judgment. It is originated by the suit, and sustained by the suit, but it is no part of it. It can only be made available through a judgment, but the judgment neither changes its nature nor determines its validity; nor does it operate to perfect the attachment. The judgment establishes the existence of the demand upon which the attachment is predicated, and the security taken; wrhereas it was before only alleged, and presupposed for the purpose of the security. The security is not inchoate, but it is conditional in the sense that liens by judgment are conditional. It depends upon contingencies whether it will ever be made available to the creditor, and so it is with liens by judgment, where there is a period when they cease to exist, if the judgment creditor has not proceeded to seize the property. The continuance of a lien by attachment depends upon one contingency beyond liens by judgment, which is, that the plaintiff sustains his suit; but the fact that the law authorizes it to be fastened upon the property in [377]invitum, before the existence of the demand is admitted or ascertained, and that it may be defeatad and dissolved if it shall appear that the plaintiff has no claim, neither disproves its existence as a security before the demand is ascertained, nor shows that it did not confer vested rights from the moment it was taken. A pledge to secure all demands which may be due from the pawner to the pawnee is not the less a pledge, or the lien less perfect, because it may appear, upon an accounting, that nothing is in fact due. And an accounting, by which the pawner is found indebted in a certain sum, has no operation to perfect the pledge, although it ascertains the amount for which it stands as security. Nor does the expiration of the day of payment, by which the pawnee obtains a right to sell the pledge and apply the proceeds in satisfaction of his demand, perfect the security, although it gives an absolute right to sell the pledge, which did not exist before.”
“ Whether any lien will be available to the party entitled to it, is usually a contingent matter, dependent upon his pursuing the regular steps to enforce it.”
If the existence of the lien does not depend upon the judgment ; if it exists in its full force from the moment the attachment is made; if it fastens itself upon, arid binds the property at once, giving priority of right; if it is originated by the suit and sustained by the suit, blit is not a part of it, it is certainly not affected or defeated by the subsequent death of the defendant, unless the suit itself abates, or that result is accomplished by, or plainly and necessarily inferable from, some positive statutory provision ; and in my opinion the provisions of the statute cited in the prevailing opinion cannot properly be so construed as to work such a result. No allusion is made to attachment liens in any of those provisions. They all apply to a different subject matter, and none of them appear to me to be inconsistent with the idea that the lien may survive. Under our statute (Practice Act, Sec. 16) the suit itself does not abate by the death of either party. In all cases where-there is any occasion for it, the suit may be continued against [378]the representative of the deceased defendant. If the attachment is dissolved by the death of the defendant, it is not because there is any express provision to that effect, but it must be implied from the failure to make any express provision for subsequent proceedings to enforce the lien. After a careful examination of the subject my mind is forced to the conclusion, that the attachment having been levied, and a specific lien upon the property having been acquired during the lifetime of the deceased, the attachment was not dissolved, nor the lien discharged by the death of the defendant in the suit. Nor does it seem to me that the authorities cited in the prevailing opinion to sustain the opposite conclusion can have any influence in determining the question. Indeed, not much reliance seems to be placed upon them. The case of Davenport v. Tilden, 10 Met. 320, only decides, that an attachment of property upon mesne process constitutes a lien wflthin the meaning of the term as used in the G-eneral Bankrupt Act of 1841, and that, when a discharge is set up as a bar to an action secured by a lien acquired through an attachment levied before the proceedings in bankruptcy were commenced, “ the plaintiff may have a special judgment rendered, and an execution awarded against the attached property only.” This case, so far as it has any bearing upon the questions now before us, appears to me to sustain the position maintained in this opinion, that there is a lien, and that a special judgment enforcing the lien may be rendered. I shall have occasion to refer to the case again. The cases in South Carolina of Kennedy v. Raguet, 1 Bay, 484, and Crocker v. Radcliffe, 1 Const. S. C. R. 83, depended upon different principles. The attachment law of South Carolina was only designed to compel the appearance of a non-resident, or absconding debtor. Upon his appearing and putting in bail, the attachment was dissolved. So, after putting in bail, if the defendant died, the suit abated and the bail was discharged ; and the attachment simply stood in .the place of bail, and was subject to the same incidents. The Court say, as the result of their reasoning in .the latter case (1 Const. S. C. R. 87): “ From this view of
It is true that the attachment lien can only be made available through a j udgment of some sort. But this is ordinarily equally true of a lien by mortgage, or a mechanic’s lien. It is also true, that, in a case wherein the defendant dies pending the action, neither the Probate Act nor the Practice Act makes any specific provision for enforcing an attachment lien acquired in the action before the death of the defendant. Under sec[380]tion two hundred thirty-nine of the Probate Act, if literally construed, the Probate Court could only pay the debt secured in the course of administration, without reference to the lien. Under that section only two kinds of liens are authorized to be paid, viz: “judgments rendered against the deceased in his lifetime, and mortgages in the order of their dates.” Yet section one hundred thirty-three speaks of claims “ secured by a mortgage or other lien.” What other lien ? There are many liens other than those authorized to be paid by any express provision of the Probate Act. What' is to become of such other liens, if the fact that they are not specifically provided for, ánd that ohly certain specified demands can be paid, and in a prescribed order, is to prevent payment by the Probate Court? Are they to be lost to the parties holding such liens? The same argument by which it is inferred that the death of a defendant destroys an attachment lien would lead to the conclusion that all other liens, not specifically mentioned and provided for, become discharged by the death of the owner of the property upon which the liens are charged. So also, section one hundred eighty-six speaks of liens other than mortgages, and authorizes their payment; but the provisions are limited to liens on land. No provision whatever is made for liens on personal property. But it does not follow that there is no remedy, where none is expressly provided. In all cases where there is a valid lien, and no specific provision is made for giving it effect, the District Court, by virtue of its general jurisdiction over such matters, must have authority to enforce it. The District Court, I apprehend, would have jurisdiction to enforce a vendor’s or mechanic’s lien upon real estate after the death of the vendee, or owner, notwithstanding the Probate Court might pay it under the provisions of section one hundred eighty-six, as it now stands, upon the same principle that it could foreclose a mortgage under like circumstances; and I apprehend that a vendor or mechanic did not lose his lien by the death of the vendee, or owner before the recent amendment of said section authorizing its payment, notwithstanding there vras no other provision authorizing such pay[381]
The judgment can readily be adapted to the exigencies of the case, and would be similar to a judgment for the enforcement of other liens, and would be enforced in the same manner. The remarks of Mr. Chief Justice Shaw in Davenport v. Tilton, cited in the prevailing opinion, are apposite in this connection. In that case, after the commencement of the suit and attachment of the property, the defendant having procured his discharge from all his debts under the general bankrupt Act of 1841, plead such discharge. The defendant having been discharged from all his debts, including the debt in suit, [382]it was contended that no judgment could be entered against him ; that no mode of enforcing the attachment lien was provided ; that the lien was only security for any judgment that might be recovered in the action, and could not be made available except through a judgment; and as no judgment could be rendered upon a debt which had ceased to exist, the lien, even if excepted in terms in the statute, was necessarily lost.
The Chief Justice said (10 Met. 328-9): “ This consideration leads to another rule of exposition, which is, that when a statute confers a right, it confers all the necessary means by which such right can be established and made effectual. The exception of liens, mortgages and securities on property is made for the benefit of the holders of such securities, and they are entitled to the use of the necessary legal means of making them available. If so, and if an attachment on mesne process is a lien or security on property, to be made available only by a judgment and execution of some kind, then the above proviso would in legal effect stand thus: Provided that nothing in this Act contained shall be construed to prevent an attaching creditor from obtaining such judgment and execution as may be necessary to give legal effect to his attachment on the property of the bankrupt, made before the proceedings in bankruptcy were commenced. But where such exception is founded on implication it must be a necessary implication, and will be extended no further than is necessary to give effect to the right reserved. The discharge will still have its full and complete effect, except so far as the existence and operation of a judgment may be necessary to enable the creditor to have a special execution awarded, and to take the attached property upon it. It would not have the usual attributes of a judgment as record evidence of a debt, on which an action will lie, and upon which the person of the debtor may be arrested, or other property than that attached taken in satisfaction. In all these respects, the discharge would still have its effect. It would be, though still in form a judgment in personam, in substance, and legal effect, a judgment in rem, binding the specific property attached.”
[383]And again, with respect to a special judgment and execution he says (pp. 330-1): “ If, therefore, we entertained more doubt as to the general question, we should strongly incline to the opinion that, under the circumstances of the present case, the plaintiffs would have a legal right to maintain their prior lien over the claim of another separate claimant who, if the plaintiff should fail, would hold the property against both the bankrupt and his creditors; and that the plaintiffs are entitled to such special judgment and award of execution as will enable them to maintain that priority. (See Storm v. Waddell, 2 Sandf. 494.) Such special judgment, or special award of execution, although not frequent, is not unprecedented. The law having exempted the person of a debtor from arrest, after having taken the poor debtor’s oath, leaving his property liable, the process may be varied accordingly. And, generally, where a party has a right which cannot be obtained by the ordinary forms of process, the Court will vary these forms so as to secure the party his right. (Cooke v. Gibbs, 3 Mass. 193.) Express authority is given to the Courts by Revised Statutes (Chap. 97, Secs. 10-11) to vary the form of execution, when necessary to adapt them to the changes of the law, or for other sufficient reasons. And it is believed that such special judgment and award of execution are not unknown to the common law of England, when the rights of the parties require it.”
In this case, by the attachment the plaintiff under the statute acquired a lien upon, and a right to have this demand satisfied out of, the property attached, and, as I think, by no express provision of the statute, or necessary implication from statutory provisions, was the lien lost, or right impaired by the subsequent death of the defendant. If this be so, and if, in the language of Mr. Chief Justice Shaw, “ when the statute confers the right, it confers all the necessary means by which such light can be established and made effectual”—and I have no doubt as to the truth of the proposition—then the District Court has the power to enforce the lien.
Mechanics’ liens for the construction of buildings; for the manufacture or repair of articles of personal property; inn[384]keepers’ and carriers’ liens, and the like, are as much liens in invitum, imposed by law independent of conventional stipulation, as liens by attachment, and, when the right has once attached, the latter are no less sacred, and no more without the pale of legal remedy than the former. The purpose of the attachment is to secure the debt, and the judgment only ascertains that there is in fact a debt to be secured, determines its amount, and enforces its satisfaction out of the property attached, if sufficient; and if insufficient, in a proper case, to the extent necessary, out of the other property of the debtor. The views expressed in this opinion do not appear to me to be inconsistent with the provisions of section two hundred two of the Practice Act cited in the prevailing opinion. In the cases there mentioned no lien was acquired during the lifetime of the defendant. The lien mentioned is a judgment lien, not a lien by attachment. In the case of an attachment on mesne process, the lien is created by the levy, and not by the judgment, and, as we haye seen, is wholly independent of the judgment. The judgment does not create the lien, but is only a means of enforcing a lien already created by the levy— of giving effect to a right before acquired and fully vested. These remarks are also applicable to section one hundred forty of the Probate Act: The provisions of this section refer to the naked judgment simply establishing a demand. It speaks of the effect of the judgment, not of a lien already acquired. It says the judgment shall not “ create any lien upon the property of the estate; ” not that it shall not enforce a lien already created and vested. The judgments and executions spoken of are judgments and the executions to be issued thereon in the ordinary cases where no lien already exists. The provision has no reference whatever to proceedings to enforce mortgages, mechanics’ and other liens, or to the modes of executing judgments in such cases.
Conceding the right to exist, there is nothing in the forms of judicial proceedings in this State to prevent the granting of the relief in this action. The proper course of proceeding in such cases would, perhaps, be, by supplemental complaint to [385]aver the death of the defendant, and the facts showing the particular relief to which the plaintiff has become entitled by reason of the events happening subsequent to the institution of the suit, so that the facts may be presented in an issuable form in the pleadings. In this case the death of the defendant was suggested, and his representative substituted in the record, and the record of the case shows all the facts necessary to entitle the plaintiff to the relief obtained. The property itself is in the custody of the law, and under the control of the Court, in this very case. The Court finds all the necessary facts and grants the appropriate relief. The only objection, as it seems to me, that could be plausibly urged, is, that it does not appear by the transcript that the levy of the attachment and the existence of the lien was set up in a supplemental complaint, so as to make all the facts constituting the basis of the judgment appear in the pleadings. But this objection, if valid, was not made in the Court below, nor has it been made here. The appellant relies upon the ground that the attachmetit was dissolved by the death of the defendant, and consequently that no lien survived to be enforced. Upon this ground he rests his case. It may be that a supplemental complaint was filed, setting up the facts. However this may be, the attachment, in my judgment, was not dissolved by the defendant’s death, and the facts, as they exist, justify the order for a sale of the property, and application of the proceeds to the payment of the amount found due.