Barker v. Wendell

12 N.H. 119 | Superior Court of New Hampshire | 1841

ParkeR, C. J.

There was formerly some doubt in what cases a party could obtain a further satisfaction, where his extent upon the lands of his debtor had failed.

The statute of February 15, 1791, subjecting lands to the payment of debt, and directing the mode of levying executions, authorized the issuing of a scire facias, requiring the debtor to show cause why an alias execution should not issue against him, when an execution had been levied on any estate and it afterwards appeared that it did not belong to the debtor. And where a new execution was issued, on the scire facias, it provided that the doings by virtue of the former execution should be considered as void, and of no effect. N. H. Laws (Ed. 1815) 183. The operation of this proceeding was, of course, to revive and continue in force the judgment. The party, by the scire facias, was remitted to that, and took a new execution upon it; and all the proceedings under the first execution failed, not only from the nature of the case, but by the express provision of the statute.

An additional act, of July 1, 1825, made provision that after a levy, or extent, upon real or personal estate which did not belong to the debtor, the creditor might bring an action of debt upon the judgment upon which the execution issued ; and if, upon trial, it should appear that such estate, or some part of it, did not belong to the execution debtor, the plaintiff might recover the amount equitably due and unsatisfied. If the debtor died before a recovery was had, and his estate was represented insolvent, the statute authorized the exhibition of the claim to the commissioners, and required them to examine, and allow, or reject, as the justice of the case required, giving an appeal from their determination, as in other cases of claims presented. This provision was retained in the revision of the laws on this subject, by the act of July 4th, 1829; and under it the plaintiff had his claim allowed against the estate of Dorothy Wendell, after he failed to sustain the original action, of which this is a review, and which was founded upon his levy upon the supposed equity of redemption.

There is no express provision in the act of 1825, or that of 1829, that upon the recovery of a judgment in such action of debt, the proceedings under the former levy should be void, so far as a recovery was had ; but that seems to be a necessary result from the recovery or allowance itself; for the statute applies, only, in case the estate levied on did not belong to the debtor. That fact must necessarily be found, to warrant the rendition of a new judgment, or the allowance of a claim, under the statute. Being found, the creditor, instead of taking a new execution on the original judgment, takes a new judgment, and execution for the amount, or has it allowed against the estate as a debt, for the reason that he has taken nothing by his levy on property not his debtor’s, and that his debt to that extent still subsists. This is not an additional remedy, arid of course he can no longer hold under the levy.

Although the levy here was upon an equity of redemption, which was sold, the same principle is applicable under the existing circumstances.

If the plaintiff had not been the purchaser of the equity at the sale, but by means of a sale to a third person had received his money, there would have been an objection to his sustaining any suit or claim founded on an alleged invalidity of the sale, until he had refunded the money realized from it, or at least had made a tender for that purpose. 8 N. H. Rep. 121, Batchelder vs. Wason. So long as he had actual satisfaction of the debt, and asserted a right to retain it, he could have no claim to enforce the collection of the debt again ; and it would be clear that he could not, against the will of the purchaser of the equity, under his execution, defeat any title which that purchaser had actually obtained, by an allegation that nothing had passed, and an assertion of a right to a new execution, upon such allegation. But being the purchaser himself, he in effect took the right in equity, in satisfaction of his debt, to the extent of the price ; and whenever it could be made to appear that nothing passed by the sale, he was entitled under the statute again to pursue his remedy for the recovery of his debt.

Had Dorothy Wendell continued to live, the plaintiff might have commenced an action against her, immediately after the rendition of the judgment against him, in the original action of which this is a review, and even before that time if he could have conclusively established her want of title to the supposed equity, which was the subject of the levy and sale. S N. H. Rep. 114. He would not have been obliged to prosecute a review, in order to settle the right, but might consider it determined by the first judgment. Or he might have prosecuted a review to judgment, for the purpose of sustaining the title under the levy, if possible, and have exhausted all the remedies the law afforded him to establish a title to the land ; and failing at last, he might then have commenced his action, to obtain his new execution. He would have had his election which course to pursue.

He had the same election on her death, except that the limitation of the time, for the presentation of the claims against her estate, obliged him to put in his claim before a review could be determined, if he intended to come in as a general creditor, and not as one who prosecutes a claim, subsequently, because his demand depended upon a contingency. Whether, after failing on review, he might have sought a remedy against any estate which was left, on the ground that his demand depended upon the contingency of his being able to hold the equity sold, and that this contingency did not determine until he elected to proceed no further, need not be discussed at this time. The fact that he was obliged thus to make his election, by the decease of his debtor, does not alter the principle of the case. If she had lived, and the plaintiff, upon judgment being rendered against him in the action, in. 1839, had submitted to that judgment, and brought his action against her, founded on the failure of the levy, and obtained a new judgment, he could not afterwards have prosecuted. a review of the action, for the reasons before stated. His new judgment would be founded on his own allegation, and proof, that the levy was on property which did not belong to his debtor, and the proceedings under the levy must be thereby rendered void. And so when he presents his claim, and procures an allowance, upon the ground that his levy has failed.

The attempt to reserve a right to prosecute a review, notwithstanding the allowance of the claim, cannot alter the case. He would not have been entitled to make such reservation, in a suit against her, if she had lived. He had as little right to make it, on claiming his debt against her estate and having it allowed.

Nor can the release avail him, even if executed by his express authority. The levy being avoided by the allowance of the claim, cannot be restored by the release of that claim.

The brief statement, filed by the defendant since the commencement of the review, is entirely inoperative. He could not have filed a new plea of matter arising since the review, and which could not have been given in evidence under the pleadings originally filed. 6 N. H. Rep. 204, Burley vs. Burley. But the matter, set forth in the brief statement, avoids the levy on the supposed equity, and thus destroys the plaintiff’s claim of title under it from the beginning. We see no objection to the defendant’s offering the evidence, under the general issue, originally filed in the case, notwithstanding the matters arose since the original judgment.