Allen vs. Brown. other hand, if it was correctly assumed in the case referred to, that the section does not apply to such affidavits, and that an attachment issued upon a defective affidavit is void, and, therefore, incapable of being helped by amendment, none can, of course, be allowed, even if there is no motion to vacate. All that was said in that case, on this subject, is, that section 161 "relates altogether to amendments in the pleadings, and the character and form of the proceedings, and not to defects such as we are now considering, and which not only affect the substantial rights of the appellant, but render void the order of attachment complained of." An attachment is a "special proceeding" as defined by the` Code. (Preliminary Provisions, secs. 2, 3 and 4.) Section 161 applies to "any proceeding" under the Code, and necessarily applies, therefore, to proceedings by attachment. This was conceded in Pool vs. Webster, &c., but the section was held to relate only to "the character and form" of the proceeding, and not to such defects as the court were then considering.` This conclusion we cannot adhere to. It is not sustained either by the letter or policy of the Code, nor by any satisfactory reasoning to be found in the opinion. The precise idea intended to be conveyed by the expression, "the character and form of the proceeding," is not distinctly perceived, nor do we perceive the ground of distinction between defects in "the character and form of the proceeding," and defects in the affidavit which constitutes a part of the proceeding. The language of the law makes no such distinction. It speaks of proceedings and not of their character and form, and it authorizes the amendment of "any pleading or proceeding" in certain respects or "in any other respect." As the affidavit forms part of the proceeding, and as the section authorizes the amendment of any proceeding, "by correcting a mistake in the name of a party, or a mistake in any other respect," it is difficult to escape the conclusion that the section was intended to apply to a defective affidavit. As already stated, the opinion under review concedes that section 161 authorizes amendments with respect to "the character and form" of such proceedings. Would not an attach Allen vs. Brown. ment, in a proceeding that does not conform to the Code, either in its character or form, be as invalid as an attachment issued upon a defective affidavit? And why should an amendment be allowed in the one case, any more than in the other? To sustain an attachment a petition, stating a cause of action, is as necessary as an affidavit stating that the claim is just. If the petition may be amended, why may not the affidavit also, especially as both are clearly embraced in the terms of the law which gives the right to amend? The fact that this is a statutory proceeding, summary in its nature and sometimes oppressive in its operation, furnishes reasons for requiring strict conformity to the provisions which authorize it, but furnishes no reason for dispensing with those other provisions which authorize the amendment of any proceeding under the Code. If, however, an attachment issued upon a defective affidavit is valid, as it was said to be in Pool vs. Webster, &c., it could not be helped by an amendment under section 161, and such amendment, therefore, should not be allowed. But upon what ground can it be held void? The Code does not declare that the clerk's order of attachment shall be void unless the requisite affidavit is filed, nor that the jurisdiction of the court is to depend on the filing of such affidavit. The case seems to be within the general rule, that the proceedings of a court, having jurisdiction of the person or subject, are not void, however erroneous they may be. The jurisdiction of the court in attachment cases depends upon the actual or constructive service of process upon the defendant, and not upon the plaintiffs' affidavit, nor upon the clerk's order. And these views are, we think, sustained by several cases which were not noticed in Pool vs. Webster, &c. In one of these it was held that a petition might be amended in an attachment suit brought by a judgment creditor, under section 476 of the Code. (2 Met., 286.) In such cases the affidavit required by section 222 is dispensed with. The attachment issues upon the filing of the petition verified in the ordinary mode. But there is no difference in principle between allowing the amendment of a peti Allen vs. Brown. tion on which an attachment issues, and the amendment of an affidavit on which an attachment issues. In another case it is said that, "the objection that the allegations of the petition are insufficient to uphold the attachment is also well founded. Their purport is, that Clarke was insolvent, and Smith was preparing to remove from the State with the intention of not returning. The charge of insolvency alone is insufficient for an attachment; a charge of removing from the State, unaccompanied with the statement that the party was about to remove his property, or a material part thereof, not leaving enough to satisfy the demand sued for, is equally defective. In this case, however, there was no answer, and no motion to vacate the attachment, and, upon the return of the cause, the appellee should have leave to amend his petition if he so desires, and, upon his failure to do this, his attachment should be vacated." Gossom vs. Donaldson, 18 B. Mon., 230.) Though the Code requires the plaintiff to file an affidavit, stating the grounds for an attachment, as well as the nature, justness, and amount of his claim, yet if the petition itself contains a statement of all these matters, and is sworn to, it should be regarded as supplying the place of a separate affidavit, which, under such circumstances, may be dispensed with altogether. (Scott vs. Doneghy, 17 B. Mon., 324.) The case of Gossom vs. Donaldson, therefore, is an authority, that the plaintiff, where no motion has been made to vacate the attachment, inay amend his affidavit by stating a ground for an attachment, and thus cure a defect, which, according to Pool vs. Webster, &c., renders void the order of attachment. In the case under consideration, no motion has been made to vacate the attachment, and, in allowing an amendment to the affidavit, we do not go as far, perhaps, as the court went in Gossom vs. Donaldson, because here the affidavit states a valid ground of attachment, and is defective only because it fails to state the justness of the claim. In Ryan vs. Bean's adm'r., (2 Met., 138,) that part of section 161 which prohibits the reversal of a judgment for any error or defect in the proceedings, which does not affect the substantial rights of the adverse party, was held to be applicable to de Phillips vs. Clark, &c. fective affidavits in attachment cases. If so, the preceding part of the same section is clearly applicable, and authorizes the amendment. Our conclusion, then, is, that the court below may, on the return of the cause, allow the appellee to amend his affidavit on such terms as may be proper. Concerning the alleged indebtedness of the appellant, Allen, we need not express an opinion. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. CASE 37-PETITION EQUITY-OCTOBER 3. Phillips vs. Clark, &c. APPEAL FROM THE MARION CIRCUIT COURT. 1. A deed, though acknowledged and left in the clerk's office for registration, is not constructive notice to creditors and purchasers, until the tax be paid thereon. (Rev. Stat., chap. 24, sec. 32.) As to them, the vendee has but an equitable title. 2. If a man is silent when he ought to speak, equity will debar him from speaking when conscience requires him to be silent. (Roberts on Fraud. Con., 527-8.) 3. A deed was acknowledged and left for registration, but the tax not paid on it; the vender, who is insolvent, remained in possession of the lot conveyed, and contracted with a mechanic to build a house upon it. While the building was progressing, the vendees, aware of it, stand by, see it go up, remain passive and silent-the mechanic not having had any notice of their claim. Held, (in a suit to enforce the mechanic's lien,) that the property is subject thereto. SHUCK & WOODS, for appellant, cited Rev. Statutes, chap. 24, sec. 32; Ib., chap. 80, secs 20, 21, 22; 3 Stat. Law, 409; 6 B. Mon., 29; 11 Ala., 386. ROUNTREE & FOGLE, for appellees, cited 15 B. Mon., 82; Bowman vs. Phillips, &c., Mss. Opin., June, 1857. Phillips vs. Clark, &c. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: On the 11th of January, 1860, Abell and Winsatt, sold and conveyed to appellee, T. J. Clark, a certain lot in the town of Lebanon, at the price of $450, no part of which was paid down, and a lien was retained in the deed for the purchase money. The deed was acknowledged by Abell on the 11th, and by Winsatt on the 12th of January, 1860, before the clerk of the Marion county court, and ordered to be recorded, but was not recorded until the 9th of April, 1861. On the 5th of March, 1860, Clark and wife sold and conveyed the same lot to D. W. Phillips for $450-$150 of which were paid down, and the balance was to be paid on a future day. This deed was acknowledged by Clark, before the proper officer on the day it bears date, and by Mrs. Clark, on the 7th of May, 1860, and ordered to be recorded. On the 7th of May, 1860, D. W. Phillips, in consideration of four hundred and fi.ty dollars, expressed to have been paid in hand at the time, sold and conveyed the same lot to B. J. Beaven and Elias Russeil. This deed was acknowledged before the proper officer the day it bears date; and all of said deeds were left in the office for registration. In the latter part of May, 1860, and subsequent to the several conveyances referred to, Clark, who continued in the possession of the lot from the time of his purchase from Winsatt and Abell, and was at that time in possession, contracted with R. M. Knott, a carpenter, to construct a building on said lot. Knott immediately commenced the building, which he completed in August, 1860, and on the 1st of September, thereafter, settled with Clark therefor, when Clark was found indebted to him in the sum of $280, and for which he executed his note payable two months from date. On the 9th of April, 1861, Knott and J. G. Phillips, to whom it is alleged Knott had assigned Clark's note, brought a suit in equity against Clark and wife, Winsatt and Abell, D. W. Phillips, Elias Russell and Benedict J. Beaven to coerce the collection of the balance due on said note, by a sale of the house |