•   Email
  •   Print
Serving
Massachusetts Agencies

Dissolution

Attachments

Attachments can be dissolved in a number of ways. Here are references to section numbers in Chapter 223 that govern the dissolution of attachments:

§114A Lapse of attachment by passage of time (six years) unless refiled (within six year period). Can be successive refiled, in each case before the prior six-year period has expired.

§115 Dissolution by judgment for defendant: all appeals must be exhausted.

§115A Dissolution due to failure to make service on defendant within sixty days.

§116 Dissolution by reason of death of defendant provided that no execution has been recorded and an estate is taken out for the defendant in the commonwealth within a year of the death.

§125 Dissolution by bond, provided the sureties are approved by the plaintiff, a master or the court.

§128 Dissolution by deposit of funds with sheriff.

§132 Discharge or partial release of attachment by plaintiff, his executor, administrator or “attorney of record.”

An important point to keep in mind is the time limitations which govern the “merger” of an attachment into an execution. There is confusion on this point, but is an important concept to understand, because the timely recording of an execution will determine whether and to what extent the lien of the execution will “reach back” to the time the attachment was made. The two statutes that must be understood here are G.L.c. 223, §59 and G.L.c. 236, §4. One statute speaks in terms of a thirty-day limitation, while the other mentions a forty-day period. Even Swaim, Crocker's Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §779 expresses confusion (“There seems to be a conflict between [G.L.c. 223, §59] and Chapter 236, §4, as to the forty days within which an execution can be deposited to take property that has been attached”), but the confusion is explained away in the case of McGrath v. Worcester County National Bank, 3 Mass.App.Ct. 599, 338 N.E.2d 361 (1975). First, what do these two statutes provide?

G.L. 223, §59: Upon judgment for the plaintiff in a civil action, property which has been attached in connection with said action shall remain subject to attachment for thirty days [sixty days in Nantucket] after the date which appears on the execution issued upon such judgment pursuant to chapter two hundred and thirty-five, unless sooner dissolved.

G.L. 236, §4: If land, which was not attached on mesne process in the action in which the execution issued, is taken on execution, the officer shall forthwith deposit in the registry of deeds for the county or district where the land lies a copy of the execution with a memorandum thereon that the execution is in his hands for the purpose of taking the land of the defendant, and no such taking shall be valid against a purchaser in good faith, for value and without notice, before such copy is deposited. If land was attached on mesne process, a copy of the execution with a memorandum as aforesaid shall be deposited by the officer in the registry of deeds for the county or district where the land lies, within forty days after the date which appears on the execution issued upon the judgment in the action, and the attachment shall become void forty days after said date unless the copy is so deposited; provided, that if land was attached on mesne process in Nantucket county and judgment was rendered in another county, or if judgment was rendered in Nantucket county and land was attached in another county, said copy shall be deposited within seventy days after the date which appears on the execution issued upon judgment in the action, and the attachment shall become void seventy days after said date unless the copy is so deposited.

Indeed, it does seem to appear that the two statutes are “in conflict,” but as explained in the McGrath case they are not:

The thirty-day period referred to in G.L. c. 223, s 59 is one during which the attached property ‘shall be held . . . so that it may be taken on execution’ (emphasis supplied). It has long been held under and its predecessors that an attachment not levied upon within that period is automatically dissolved. (Citations omitted.) By contrast, the forty-day period in G.L. c. 236, s 4 refers to the time during which a copy of the execution must be ‘deposited by the officer in the registry of deeds’ after the judgment. There is no inconsistency. The two statutes are directed at two different acts to be performed by the officer in order to preserve the lien. Both statutes must be complied with or the attachment is lost.

The McGrath court traced the history of the statute and it predecessor counterparts and noted, “[the] history indicates a conscious effort by the Legislature to establish a uniform ten-day interval between the levying and recording deadlines in all situations and a legislative awareness of the distinction between the two.

In other words, the thirty-day period governs the time during which the sheriff must make an endorsement upon the execution, while the forty-day period requires that the execution be recorded at the registry during this period.

For further information on the dissolution of attachments see REBA’s Title Standard No. 49.

Regarding G.L.c. 236, §4, there are issues that concern its own interpretation. The first part of the statute provides:

If land which was not attached on mesne process in the action in which the execution is issued, is taken on execution, the officer shall forthwith deposit in the registry of deeds for the county or district where the land lies a copy of the execution with a memorandum thereon that the execution is in his hands for the purpose of taking the land of the defendant, and no such taking shall be valid against a purchaser in good faith, for value and without notice, before such copy is deposited.[1] (Emphasis added).

The second sentence of the statute provides:

If land is attached on mesne process . . . a copy of the execution . . . shall be deposited by the officer in the registry of deeds . . . within forty days after the date . . . on the execution, and the attachment shall become void forty days after said date unless the copy is so deposited.

Read in a vacuum the section may be susceptible of two interpretations:

(i) that the attachment dies as to all property against which a timely levy is not made; 

(ii) that the attachment continues to be secured by all property covered by it if an execution on any property is timely filed.[2

Interpretation (ii) would be inconsistent with the obvious intent of the statutory section, which is to clear the title of the attachment within a specified time. The language in the statute that “the attachment shall become void forty days after said date unless the copy is so deposited” was not inserted in the statute to address the continued vitality of the attachment, but rather to deal with the question of priority of the execution over matters recorded after the attachment. In the case of an attachment on mesne process the execution must be recorded within forty days of its date[3] in order to preserve the priority of the previously made attachment and relate back to the time it was made. However, that appears not to be the issue here, as there was no prejudgment attachment made.

The above time period will be tolled if the seizure is suspended on account of a prior attachment or execution. See 236, §§31, 32, which provide as follows:

§31. If land has been seized on execution and further service thereof is suspended by reason of a prior attachment or seizure of the same land, or on the written request of the creditor, the officer making the later seizure shall cause a record thereof to be made in the same manner as an attachment of land on mesne process is recorded. Such record shall be sufficient notice of said seizure, and the levy on such land shall be considered as having been made at the time of such seizure if such record is made within three days thereafter; otherwise, at the time when said record is made. The land shall remain bound by such seizure until set off or sold in whole or in part under the prior attachment or seizure or until that attachment or seizure is dissolved.

§32. If land is set off or sold in part under a prior attachment or seizure, or if that attachment or seizure is dissolved, the land or such part thereof as remains undisposed of shall continue bound for thirty days thereafter by the seizure on execution, and service of the execution may be completed as if the land had been first seized thereon within said thirty days, although the return day thereof has passed.

1 I presume no third parties intervened before the recording of the execution. [Back to Text

2 The statute uses the language, “the attachment shall become void forty days after [the date of the execution] unless the copy [of the execution] is so filed.” [Back to Text

3 Prior to the enactment of Chapter 152 of the Acts of 1980 the forty day period ran from the date of the judgment. [Back to Text