Opinion of the Court. Mr. S. T. Douglas (Messrs. Bowen, Douglas & Whiting were on the brief) for appellees. TAFT, Circuit Judge, after stating the case as above, delivered the opinion of the court. Counsel for the appellant upon the argument in this court abandoned that part of his appeal which challenged the action of the court below in dismissing the bill as against Lucy D. S. Parker personally and as executrix of her husband, Franklin Parker, and in so far as it sought to subject to the judgment against Morgan anything but the real estate attached and levied upon in the suit at law in the court below. The bill is to be treated, then, as a bill in aid of the complainant's execution at law. As attachments and executions may be levied on equitable interests in real estate in Michigan, such bills are there frequent and well-recognized equitable remedies (Lasher v. Stafford, 30 Michigan, 369; Doak v. Runyan, 33 Michigan, 75; Pursel v. Armstrong, 37 Michigan, 326), and will be entertained in the Federal courts of equity sitting in that State. Lorman v. Clarke, 2 McLean, 568. First. It is objected that the complainant lost his lien by attachment because of the nulla bona return on his first fieri facias, and his unreasonable delay in suing out the alias writ. The judgment was rendered in June, 1893, and the first execution issued in the same month. The nulla bona return was made in September, 1893, and the alias writ issued in February, 1894, and was returned after levy on the attached lands in April, 1894. The second writ issued, therefore, less than nine months after the rendition of the judgment. Was the nulla bona return an abandonment of the attachment? If not, was the failure to levy on the attached lands until more than eight months after the judgment an unreasonable delay! Both these questions must be answered in the negative. It is true that an attachment upon personal property is ordinarily discharged by the return nulla bona on an execution issued upon the judgment. It is also true that the duty of Opinion of the Court. the judgment creditor to use reasonable despatch in levying execution upon the personal property attached before judg ment is imperative. And if the property here seized were personal, the contention of the appellees might succeed; but it is real estate, and with respect to attachments on that kind of property we conceive that a somewhat less strict rule of diligence applies. Personal property can only be attached by actual seizure by the sheriff, marshal, or other executive officer. The lien on it can only be maintained by its manual retention in official custody. A release of it by the attaching officer for any purpose destroys the lien. The necessity for excluding the owner from beneficial enjoyment in the thing attached has justly given rise to the requirement that when his judgment is obtained he shall speedily satisfy it out of that which he has so long withheld from the defendant owner. If, instead of doing so, the issue of execution is followed by a return nulla bona, it is inferred against the judgment creditor that he proposes to rely on other property of his debtor and that he has abandoned his lien; or, if no execution is issued upon a judgment within a reasonable time, the lien is to be regarded as abandoned because the defendant owner of the attached personalty may justly complain that, if he is not to have the use of it, he ought at least to have it sold and the proceeds of it applied to the payment of his debts. Avery v. Stephens, 48 Michigan, 246; Trowbridge v. Bullard, 81 Michigan, 451; Butler v. White, 25 Minnesota, 432; Speelman v. Chaffee, 5 Colorado, 247; Rickards v. Cunningham, 10 Ne braska, 417. No case has been cited to us, however, in which it has been held that a return of nulla bona on a first execution after judgment is a surrender of the lien on real estate. The case of Blish v. Collins, 68 Michigan, 542, cited for the appellees, was certainly not such a case. There a levy was made on the attached land and then withdrawn, and no claim was made under the attachment or levy. Nor has any case been called to our attention in which an attachment on real estate has been held to be discharged by delay in the levy of an execution on the land attached after judgment unless the statute Opinion of the Court. expressly limits the time within which execution and sale after judgment must take place to preserve the lien, as in Maine. Croswell v. Tufts, 76 Maine, 295. There is a remark in a decision of the Supreme Court of Michigan in considering the objection to the validity of a lien by attachment on real estate that the delay of two months in levying execution in that case was not unreasonable. This, it is argued by counsel for the appellees, is a recognition by implication that a longer time might be unreasonable. We are not prepared to deny that a lien on real estate secured by attachment might be abandoned by great delay in levying execution, especially where the rights of third parties may have intervened between attachment and execution, but there is nothing of the kind in the case at bar. The character of the real estate lien is such as to make delay in execution much less burdensome to the debtor, and to relax the stringency of the rule requiring speed in execution on attachments of personalty. Section 7993 of Howell's Annotated Statutes of the State of Michigan of 1882 provides for the attachment of real estate, and states that "it shall not be necessary that the officer should enter upon the land or be within view of it." Section 7995 provides: "Real estate attached shall be bound, and the attachment shall be a lien thereon from the time when a certified copy of the attachment, with a description of the real estate attached, shall be deposited in the office of the register of deeds in the county where the real estate attached is situated." Section 7996 provides: "Each register of deeds shall note on every such certified copy the day, hour, and minute when he receives it; and shall also enter in a book to be kept by him for that purpose, the names of the parties in such writ, designating who is plaintiff and who defendant, the time when the land was attached, and the time when such copy was deposited." Section 8017 provides: "That any attachment on real estate shall also be discharged upon the record thereof by the register of deeds in whose custody it shall be, whenever there shall be presented to him a certificate, executed by the plaintiff, his personal representatives or assigns, duly acknowledged, specifying that such attachment has been removed or Opinion of the Court. otherwise satisfied or discharged;" or a certified copy of the action of the court removing the same. It would seem to be clear enough from these provisions that the attachment upon real estate is nothing more than a statutory mode of recording a lien on real estate in anticipation of a judgment and sale of the same to pay the debt. It does not interfere in the slightest with the use and enjoyment of the land by the owner, and the exigency present in the attachment of personalty, already pointed out, has no existence where realty is the subject of the process. In Walkley v. Bostwick, 49 Michigan, 374, 375, the action was brought against the sheriff and one in whose behalf the sheriff had made an alleged wrongful levy on the lands of the plaintiff under an execution against another person, and judgment was given for the plaintiff in the court below. In reversing this judgment, the Supreme Court of Michigan, by Mr. Justice Cooley, said: "At most the act of the defendants amounted to no more than a formal assertion that the ownership of plaintiff's land was in John Walkley, and that they proposed to maintain that assertion in legal proceedings. When a sheriff levies his execution on the personal property of one who is a stranger to the judgment, there is a positive wrong, because there is a positive interference with the owner's possession. There might also be a trespass in the levy of execution on lands if the officer were to go upon the lands for the purpose; but it is not pretended that he did so in this case. Here the plaintiff finds her injury in the bare fact of levy; in other words, in the bare fact that these two defendants without malice have asserted that another party owns the land. But in law this is not an actionable wrong." Taking into consideration the real nature of the attachment, we think that in a case where the rights of third parties do not intervene no delay in issuing the execution after judgment ought to destroy the lien if it falls short of clearly indicating an intention to abandon the same. Does a delay of nine months in this case indicate such an intention on the part of the complainant? We are very clear Opinion of the Court. that it does not. In Speelman v. Chaffee, 5 Colorado, 247, it was held that the delay of a year in issuing execution after judgment on an attachment on personal property was not unreasonable or such as to indicate abandonment. If this be a sound view in the case of personalty, then, for the reasons stated, a delay of nine months in the case of real estate ought certainly not to work an abandonment. But how as to the nulla bona return? Where that has been held to work an abandonment in the case of personal property the return usually appears to have been made by direction of the plaintiff or his counsel. In such a case there is little room for doubt of an intention to abandon. But even if cases are found in which such a return without direction by the plaintiff worked a release of the lien, it must be remembered that the power of the officer to release the lien on personal property, dependent as it is on his custody, is plenary, and the only recourse of the plaintiff is against the officer, But over the existence and maintenance of a real estate lien the plaintiff and his attorney have much more control and are much less subject to injury by the negligence or wantonness of the officer. In Peck v. The City National Bank of Grand Rapids, 51 Michigan, 353, 359, the Supreme Court of Michigan said: "When the execution is levied upon real estate only, as in this case, the sheriff has no interest in it beyond his fees for making the levy until the money is collected or sale is made, and then he is entitled to his poundage on the amount collected, or for which it is sold. In such case, until sale is made, the sheriff incurs no risk or responsibility; he is not entitled to the possession of the property, and is constantly subject to the direction of the plaintiff in the execution as to further service in making the collection." There is nothing in the record to show, and we cannot presume, that the return of nulla bona on the original fieri facias was by direction of counsel for the judgment creditor. If not, certainly the marshal could not, by his negligence in failing to observe the existence of the attachment on the land and to levy thereon, deprive the party of his record lien. Vroman v. Thompson, 51 Michigan, 452; Braley v. French, |