it is the recognized position here and in other States having statutes of like purport, and both before and since the existence of our present civil procedure, that an attachment can only be levied on property which could be levied on and sold under execution, as the final process in the cause. Post-Glover Electric Co. v. McEntee-Peterson Engineering Co. 128 N. C. 199, 38 S. E. 831; Davis v. Garrett, 25 N. C. 459; Gillis v. McKay, 15 N. C. 172; Courtney v. Carr, 6 Ia. 238; Burns v. Lewis, 86 Ga. 591, 13 S. E. 123; Hillman v. Werner, 9 Heisk. (Tenn.) 586; Lane v. Marshall, 1 Heisk. (Tenn.) 30; and see note in 11 Ann. Cas. 669, on case of Pelzer Mfg. Co. v. Pitts, 76 S. C. 349, 57 S. E. 29, at page 669; Drake on Attachments, sec. 235; Shinn on Attachment, p. 415.

In the case before us it appears that the suit of A. M. Frye against the Tucka seegee Mining Company and its trustee was one strictly in personam to recover a sum for legal services rendered the company. No personal service was obtained upon either defendant, and the only basis of jurisdiction is the levy of an attachment on real property held by J. S. Burnette, one of the defendants in trust, to "sell, make title to purchasers by deeds in fee, and of the proceeds to pay, first the indebtedness of the Tucka seegee Mining Company incurred both before and since the bringing this action, and to pay over to the stockholders any surplus, etc., etc."

[111] Under our statutes, and decisions construing same, such an interest is not the subject of levy and sale under execution. Mayo v. Staton, 137 N. C. 670, 50 S. E. 331; Tally v. Reed, 72 N. C. 336; McKeithan v. Walker, 66 N. C. 95. Nor could there be any valid levy made thereon under the ancillary process of attachment, and according to the authorities heretofore cited, and the principles they uphold and illustrate, the judgment in case of Frye v. Manufacturing Co. was a nullity, and no title passed to the purchas er at the sale under final process in the cause. It is urged for defendant that plaintiff and those under whom he claims are concluded by the judgment entered in the cause, which establishes the indebtedness, declares the land levied on subject to same, and adjudges that the interest of defendants be sold and applied to payment of the judgment. The position would be undoubtedly correct if the court had jurisdiction of the parties and had acquired any right to consider and pass upon the interest of the defendants in that suit; but the action was not one quasi in rem and in which plaintiff sought to establish his debt and enforce his right against the property as a cestui que trust, or one of them, under the terms of the deeds. It was, as we have seen, a suit strictly in personam, and there having been no personal service of process on either

defendant within the jurisdiction, and the levy on the attachment being of no effect, the property not being liable to service under that process, the court was entirely without jurisdiction to establish any debt in favor of plaintiff or to determine in any way the rights or interests of the nominal defendants. And the claim under and by virtue of the alleged tax title is without merit.

The affidavit filed by the purchaser shows that he was fully aware that the property was owned by J. S. Burnette, the trustee, and the notice, made an exhibit in the record, not only does not purport to give notice to the trustee, the owner, but there is nothing in the record to show that the publication was made either on the dates or the number of times required by section 2903 of the Revisal. In several recent decisions of the Court it has been held that the requirements imposed by this and cognate sections of the statute must be strictly complied with, and [112] that a failure on the part of the purchaser to give the proper notices to the owner would avoid the deed. Rexford v. Phillips, 159 N. C. 213, 74 S. E. 337; King v. Cooper, 128 N. C. 347, 38 S. E. 924; Thomas v. Nichols, 127 N. C. 319, 37 S. E. 327.

Under the principle established by these and other decisions of like kind, we must hold, therefore, that the tax deed is void, and carries no title to the purchaser. It may be well to note that the verdict on the second issue seems to establish by correct interpretation that defendant is owner of the beneficial interest of the Tuckaseegee Mining Company, under the decree establishing the trust, and plaintiff, not having appealed, is concluded by such finding, and the judgment below will be so far reformed as to declare and adjudge that such interest is had and owned by defendant. The costs of appeal will be paid by appellant.

Modified and affirmed.

NOTE.

Equitable Interest in Real Property as Subject to Attachment.

Introductory, 786.

General Rule, 787.

Interests Subject to Attachment, 787. Interests Not Subject to Attachment, 789.

Introductory.

This note discusses the right to attach an equitable interest in real property. The cases dealing with the liability to attachment of an equitable interest in personal property, are treated in the note to Pelzer Mfg. Co. v. Pitts, 11 Ann. Cas. 665.

General Rule.

As a general rule, an equitable interest in real property is subject to attachment. Pratt v. Law, 9 Cranch, 456, 3 U. S. (L. ed.) 791 (construing Md. Statute); Fish v. Fowlie, 58 Cal. 373; Davenport v. Lacon, 17 Conn. 278; Laclede Bank v, Keeler, 103 Ill. 425; Wallace v. Monroe, 22 Ill. App. 602; Bullene v. Hiatt, 12 Kan. 98; Shanks v. Simon, 57 Kan. 385, 46 Pac. 774; Louisville Bank v. Barrick, 1 Duv. (Ky.) 51; Campbell v. Morris, 3 Har & McH. (Md.) 535; Wright v. Franklin Bank, 59 Ohio St. 80, 51 N. E. 876; Tucker v. Denico, 27 R. I. 239, 61 Atl. 642. And see Travis v. Topeka Supply Co. 42 Kan. 625, 22 Pac. 991; Aldrich v. Boice, 56 Kan. 170, 42 Pac. 695; Kentucky Northern Bank v. Nash, 1 Handy (Ohio) 153. Compare Lowry v. Wright (decided under previous statute) 15 Ill. 95; Warner v. York, 25 Ohio Cir. Ct. Rep. 310. In Louisville Bank v. Barrick, supra, the court said: "But the proposition that an equitable interest in real estate owned by a non-resident is not subject to levy and sale under a general attachment is not maintainable. The provision of the Code mainly relied on by counsel for the appellee is as follows: 'An order of attachment binds the defendant's property in the county, which might be seized under an execution against him, from the time of the delivery of the order to the sheriff, in the same manner that an execution would bind it; and the lien of the plaintiff is completed upon any property or demand of the defendant, by executing the order upon it in the manner directed in this article.' (Sec. 233.) Now, it is clear that this section was intended to apply two classes of property: First, such property as might be seized under execution; and, second, any other property or demand of the defendant which is not liable to seizure under execution. The attachment binds the first class in the same manner that an execution would bind it; the lien of the plaintiff upon the second class is completed by executing the order upon it. It would be singular that the framers of the Code should have provided for a lien upon a demand of the defendant, and should have made no provisions for a lien on an equitable interest in land, or on any other property not subject to execution. In the entire chapter regulating attachments, it is evident that the word property is used in its most comprehensive sense, and is intended to embrace everything of value belonging to the defendant which by any mode of proceeding might be subjected to the payment of his debts. The plaintiff may have an attachment against the property of the defendant. 221.) Subsequent sections—especially sec. 228-show that the word is intended to comprehend-1. Real property; 2. Personal property, capable of manual delivery. 3.

(Sec.

Other personal property, including debts, demands, stock in a corporation, etc., etc. The words 'real property' mean lands, tenements, and heriditaments (sec. 858); and can it be doubted that the holder of an equitable title of lands, for which the purchase money has been fully paid, is the owner of land within the meaning of the law, and, as such, liable to the summary proceeding by attachment? But furthermore, by section 474, the plaintiff in an execution returned, no property found, may institute an action for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled. And in such action the plaintiff may have an attachment against the property of the defendant similar to the general attachment provided for in chapter 3 of title 8. (Sec. 476.) These provisions provisions demonstrate that equitable interests must be regarded as property, and that they are subject to levy under a general attachment. There is no escaping this conclusion."

In Tennessee, it has been held that an equitable interest in real property is attachable, but only by the process of a court of equity. Lane v. Marshall, 1 Heisk. (Tenn.) 30; Hillman v. Warner, 9 Heisk. (Tenn.) 586.

Under the Nebraska statute, it has been held that where the interest of the attachment debtor in real estate is purely equitable, uncoupled with possession, an attachment cannot be validly levied on that interest. Shoemaker v. Harvey, 43 Neb. 75, 61 N. W. 109. And see Westervelt v. Hagge, 61 Neb. 647, 85 N. W. 852, 54 L.R.A. 333.

In New York, it has been held that an attachment is leviable only on legal interests and does not extend to equitable interests. Fiske v. Parke, 77 App. Div. 422, 79 N. Y. S. 327. Compare Higgins v. McConnell, 130 N. Y. 482, 29 N. E. 978..

Interests Subject to Attachment.

The interest of the vendee under a contract for the sale of real property is attachable. Thus in Fish v. Fowlie, 58 Cal. 373, the court said: "Fowlie had not the legal title to the land. He had nothing more than an interest derivable under a contract of sale made on the 15th of June, 1875, between himself and one W. J. Gunn, who was the legal owner. By that contract Gunn contracted to convey the land to 'Fowlie, his heirs or assigns,' upon payment of a balance of unpaid purchase money on or before the 15th of September, 1876. No personal obligation was given by Fowlie for the payment of the purchase money; and it does not appear that Fowlie obtained possession under the contract, or that he was in possession at the time of the levy or sale. Yet he had agreed to purchase the property, and had paid part of the purchase

money, and covenanted to pay the balance at a stipulated time; and he thus became vested with such an equitable interest in the land as was the subject of sale or transfer by himself; or of appropriation by execution, or in any other mode prescribed by law, by his creditors. And in Higgins v. McConnell, 130 N. Y. 482, 29 N. E. 978, the court said: "The question presented by the demurrer to the complaint is whether the interest of a defendant under a contract for the purchase of the land upon which he has made partial payments, and is in possession, and entitled to a conveyance of the land upon completing his payments, can be levied upon by virtue of an attachment duly issued in an action against him in the Supreme Court. We think it can. Section 644, Code C. P., provides that the sheriff must execute the warrant of attachment by levying upon so much of the personal and real property, of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses.' This, in terms, provides for a levy upon real property, and admits of the distinction between the property itself and an interest in the property, and suggests that the authority to levy upon the real property of the defendant is no authority to levy upon the real property of another in which the defendant has only some interest less than a legal estate. But section 645 was added; it was a new provision, and declared that 'The real property which may be levied upon by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant.' The interest of the defendant under this contract for the purchase of the land comprises the actual possession, the right of possession, and the right to acquire the right of property. It is a valuable interest, and is alienable." But see Sheehy v. Scott, 128 Ia. 551, 104 N. W. 1139, 4 L.R.A. (N.S.) 365. The interest of a debtor who holds a contract for the conveyance of real property may be attached, but not if he has assigned the contract to a bona fide purchaser before attachment. Lambard v. Pike, 33 Me. 141. While any of the purchase money remains unpaid, the vendor has a beneficial estate in the lands to that extent, and this equitable interest is subject to attachment. Coggshal v. Marine Bank Co. 63 Ohio St. 88, 57 N. E. 1086.

In Wallace v. Monroe, 22 Ill. App. 602, in holding that an equitable estate for life, was attachable, the court said: "It cannot be doubted, we think, that at the time of the service of the writ of attachment, Mrs. Wallace had an equitable estate for life in the land in question. Said land was conveyed to the trustee to be held by him in trust 'for the

sole and separate use of the said Celia Whipple (now Mrs. Wallace) during her naturai life.' Language could scarcely have been chosen manifesting more clearly an intention to vest Mrs. Wallace with the entire equitable estate for life. While the legal estate was conveyed to the trustee, the entire beneficial interest was given to her. The subsequent portions of the deed contain various provisions directing and regulating the manner in which the trust was to be executed, but they in no way change the character of the interest vested in Mrs. Wallace as an equitable estate in the land. There can be no doubt then that her interest in said land was an equitable interest or title within the meaning of the Attachment Act, and that it was subject to attachment."

The interest of a cestui que trust in real property is attachable. Davenport v. Lacon, 17 Conn. 278. Compare Fiske v. Parke, 77 App. Div. 422, 79 N. Y. S. 327.

In Cecil Bank v. Snively, 23 Md. 253, wherein it appeared that the property, though nominally sold to a certain person, was in fact purchased for two others, who paid the purchase money in so far as it was paid at the time, and also paid the installments subsequently falling due, it was held that the latter had an attachable interest in the property to the extent of the payments made by them, as the facts established a resulting trust in their favor.

In Atwater v. Manchester Sav. Bank, 45 Minn. 341, 48 N. W. 187, 12 L.R.A. 741, the court, while holding that, a reversion in land was a legal estate and therefore subject to attachment, said obiter that, had it been an equitable interest it would have been attachable. The court said: "At common law the rule undoubtedly was that a mere equitable estate in land could not be sold on execution, for the familiar reason that courts of law did not recognize equitable estates, and could not deal with them. But a judgment creditor was not in such cases without remedy. He could file his bill in a court of chancery, which always held that, for its purposes, these equitable interests were just as much bound by the judgment as legal estates, and could be subjected to its satisfaction by equitable process; and in adjusting the conflicting rights of creditors it always followed by analogy, the rules of the common law. It is true that the courts of chancery held that the lien or right to obtain satisfaction out of the specific property sought to be subjected to sale for that purpose dated from the filing of the bill. But this was also in strict analogy with the law, for at common law the judgment was not a lien on real property, but it was the judgment creditor who first extended the land by elegit, or whose execution was

first begun to be executed, who was entitled to priority; and a bill in equity to reach the property. for the satisfaction of a judgment was considered as being in the nature of an equitable execution. But when the law was changed so as to make judgments liens from the date of their docketing there can be no reason why a court of equity, still following the analogy of the law, should not and would not hold that equitable interests in land were subject to the liens of judgments in the order of their priority in date."

An equity of redemption is subject to attachment. Central Min. etc. Co. v. Stoven, 45 Ala. 594; British, etc. Mortg. Co. V. Norton, 125 Ala. 522, 28 So. 31; Franklin v. Gorham, 2 Day (Conn.) 142, 2 Am. Dec. 86; Lyon v. Sandford, 5 Conn. 544; Campbell v. Morris, 3 Har. & McH. (Md.) 535; Ford v. Philpot, 5 Har. & J. (Md.) 312; Bigelow v. Willson, 1 Pick. (Mass.) 485; Reed v. Bigelow, 5 Pick. (Mass.) 281; Wiggin v. Heywood, 118 Mass. 514; Kittredge v. Bellows, 4 N. H. 424; Eastman v. Knight, 35 N. H. 551; Bryant v. Morrison, 44 N. H. 288; Templeton v. Mason, 107 Tenn. 625, 65 S. W. 25; Chandler v. Dyer, 37 Vt. 346. And see Davenport v. Lacon, 17 Conn. 278; Bacon v. Leonard, 4 Pick. (Mass.) 277. In Ford v. Philpot, supra, the court said: "It appears in itself but just, that the interest which a mortgagor has in property mortgaged by him should be liable, as well at law as in equity, for his debts, and there appears no force in the objection, that it is not at law subject to a fieri facias, because it is not tangible; for the right itself, whether legal or equitable, is not tangible, but the land is; and by the sale, the interest of the party either legal or equitable, may well pass; if a legal interest, and the party in possession will not give it up. the purchaser is driven to his ejectment; and if only equitable, to get possession he must resort to a Court of equity, where, if the sale under the fieri facias passed the right, he would not only obtain the possessión, but the legal estate also." Likewise, in Reed v. Bigelow, 5 Pick. (Mass.) 281, where it appeared that an equity of redemption had been sold under execution, it was held that the mortgagor had an interest remaining which he might mortgage, and that the right to redeem this second mortgage was attachable. The court said: "It was a mere equitable interest, it is true, but it was a right to redeem a mortgage of an equitable interest in real estate, and as such was made liable to attachment by the obvious construction of the statute. The right of redeeming the first mortgage, and that of redeeming the second, were distinct rights, and the sale of one was not inconsistent with the sale of the other; for although the whole legal estate passed by the first sale, an equitable interest remained,

which might be mortgaged, and being mortguged, was subject to the right of redemption; and there seems no good reason why such a right, when it is deemed valuable, may not be taken in execution for the benefit of credi tors." And see Clark v. Austin, 2 Pick. (Mass.) 528. In Godfrey v. Monroe, 101 Cal. 224, 35 Pac. 761, it appeared that the owner of land conveyed the same by a deed of trust, authorizing the trustee to sell the same and out of the proceeds to pay the indebtedness of the grantor to an improvement company. The trustee subsequently executed a deed thereof to the improvement company, but as part of the same transaction the grantor trustee and improvement company entered into an agreement providing that as soon as the grantor's indebtedness was paid out of the receipts of the sale of the lands, the improvement company should deed to the grantor the balance of the property remaining unsold. It was held that the second deed and the agreement accompanying the same constituted a mortgage with a power of sale and that the interest of the mortgagur in the property thus conveyed was subject to attachment. In Herndon v. Pickard, 5 Lea (Tenn.) 702, it was held that the right of a person whose land had been sold under judicial sale to redeem the same, was such an estate or interest as could be reached by attachment.

Interests Not Subject to Attachment.

A levy of attachment for a debt of a grantor is ineffectual where the property has been conveyed, even though the deed has not been recorded. Plant v. Smythe, 45 Cal. 161; Cox v. Milner, 23 Ill. 476; Kelly v. Mills, 41 Miss. 267. See also Dumas v. Geer, 144 Mich. 377, 108 N. W. 84; Morrison v. New Haven, etc. Min. Co. 143 N. C. 250, 55 S. E. 611.

In Adams v. Mills, 126 Mass. 278, it was held that the right to redeem land from a tax sale was not an interest which was attachable in an action at law.

In Crocker v. Pierce, 31 Me. 177, in holding that an attachment was ineffectual against subsequently acquired property, the court said: "The purpose of an attachment upon mesne process is simply to secure to the creditor the property which the debtor has at the time it is made, so that it may be seized and levied upon in satisfaction of the debt, after judgment and execution may be obtained. The title to the property remains unchanged by the attachment. An attachment can operate only upon the right of the debtor existing at the time it is made. No interest subsequently acquired by the debtor can in any manner be affected by the return thereof, when none was in him at the time. If the levy of an execution would not be effectuai

to pass any title to the creditor at the time of the return of the attachment upon the original writ, the latter could have no effect."

In Garlick v. Robinson, 12 Ga. 340, it was held that the defendant had no interest in land subject to attachment where the title to the land was still in the state. The court said: "The defendant in execution had no interest in the land which the subject to levy and sale. All the interest he had in it, was the equitable right to acquire a title by paying the grant fees and taking a grant. That was not done at the time of the sale. The state had not at that time parted with the title. She had the sovereign right to it. The subjecting of the land to lottery was in the nature of a contract between the state and the drawer; by virtue of which, the state retaining the title, consented to convey it to the drawer, upon payment of a certain sum as a grant fee. The payment of this fee was a condition precedent to his getting a title. Whilst that was unpaid, he had no title; it was still in the state-nor had he an interest in the land, springing out of any advances, or money expended. His only right was the right to acquire a title by fulfilling a prescribed condition. That right, it is perfectly obvious, is not such an interest as was the subject-matter of a levy."

This

In Grover v. Fox, 36 Mich. 453, in holding that at common-law a contingent right to a conveyance was not attachable, the court said: "We then come to the other interest, the contingent right to a conveyance. was not a legal interest. It was a mere equity, and incapable of being held by levy at common law. If liable to be subjected upon attachment and execution, it could only be so through compliance with the statute for supplementing the levies by proceedings to ascertain and determine the interest seized,sec. 4628, C. L. The right was not proceeded against, however, as an equity." In Young v. Young, 89 Va. 675, 17 S. E. 470, 23 L.R.A. 642, it was held that a contingent remainder in real property, which was a mere possibility, was not attachable. And in Kendall v. Gibbs, 5 R. I. 525, it was held that a contingent equitable interest in real property, under an express trust, was not attachable. Wood v. Watson, 20 R. I. 223, 37 Atl. 1030.

But see

In the reported case, it is held that an interest in land held by a trustee for the purpose of sale, the proceeds of which are to be applied first to the payment of the indebtedness of a certain company and the surplus to be paid to the stockholders of the company, is not such an interest as is the subject of levy and sale under an attachment.

The purchaser of an equity of redemption sold under execution has no attachable interest in the same during the year in which it may be redeemed. Thornton v. Wood, 42 Me. 282; Rogers v. Wingate, 46 Me. 436.

In Kidder v. Orcutt, 40 Me. 589, it was held that the interest which an execution creditor had in the lands on which he had levied his execution, before the expiration of a year from the date of his levy, the time allowed by statute for its redemption, was not subject to attachment.

In Chase v. York County Sav. Bank, 89 Tex. 316, 36 S. W. 406, 59 Am. St. Rep. 48. ' 32 L.R.A. 785, it appeared that the persons furnishing the money to purchase land, caused to be vested in a trustee the "absolute title" to the property with full power of sale, and provided that the word "trustee" as used in the deed with reference to him, should not have the ordinary effect of limiting his title or right to sell, but that he was to be trustee "for the purpose only of accounting for the proceeds arising from any sale or sales of said lands or any part thereof," and that he "should not be released from his personal obligation to account to each of them and to their assigns for the proceeds of any sale or sales of said lands or any part thereof according to their respective interests in such proceeds." The court said: "It is clear that it was the intention of all parties to so place the entire title, legal and equitable, to the land in the trustee that it would be absolutely beyond the control of either of the cestui que trusts, such cestui que trust to have only the right to demand an accounting of the trustee. The legal effect of the ar rangement was to leave in each cestui que trust, not any title legal or equitable in th land, but a mere right in equity to demand an accounting of the proceeds of the sales of the land. Doubtless a court of equity would. in certain contingencies not contemplated by or provided for in the agreement of the parties, such as fraud on the part of the trustee, or a total failure of the objects contemplated by the trust, such as inability to sell the land for sufficient to defray probable expenses, or any other state of facts justifying disolution of the trust, treat this mere equitable right of demanding an accounting under the agreement, as entitling each cestui que trust to a participation in the division of the trust property itself upon such dissolution; but in the absence of such a contingency equity could not recognize the cestui que trust as having any interest in the land, as such, without doing violence to the lawful agreement by which the cestui que trust and the trustee respectively restricted and regu lated the rights of each party interested in the trust and without which it probably would not have been created. We have found no case holding such an interest subject to execution and to so hold would be going be yond the authorities."

In Piatt v. Oliver, 2 McLean 267, 19 Fed. Cas. No. 11, 115, wherein it appeared that the legal title to certain lands was in the govern