Facts
Property No. 104 in Aesch (Lucerne) was transferred to the ownership of Mrs. Karolina Lang-Waller by virtue of a purchase contract dated April 20, 1943. According to a final judgment dated December 12, 1945, she owed the seller Heinrich Stocker a remaining purchase price of CHF 2,500. While the claim proceedings were still ongoing, she encumbered the property with a mortgage in favor of her husband Jakob Lang for a loan of CHF 3,000 and then sold it to Otto Gürber. In the debt collection proceedings initiated for the price claim, Stocker received a final certificate of loss in the amount of CHF 3,005.95. Stocker then successfully challenged the mortgage encumbrance imposed by the debtor as well as the sale of the property to Gürber.
Gürber sold the property during the avoidance proceedings initiated against him to Robert Hess, who was registered as the new owner on January 8, 1954. When Stocker wanted to have the property attached for the certificate of loss claim, Hess opposed the enforcement. The debt collection office therefore considered the attachment request not enforceable, but was instructed by the lower supervisory authority to attach the property upon the creditor's complaint. This order was confirmed by the upper cantonal supervisory authority.
Considerations
The Federal Court states that in cases where a property not registered in the name of the debtor against whom debt collection proceedings are pending may nevertheless be attached, Art. 10 para. 1 DEBA provides more detailed regulations. Here, only point 3 applies, according to which such a property is subject to attachment if the creditor credibly demonstrates that the land register entry is incorrect.
The Federal Court considers the considerations of the lower court to be incorrect, as the challenge under Art. 285 et seq. DEBA does not affect the substantive validity of the…