| N.H. | Jun 15, 1874
The plaintiff, as a creditor of the defendant, caused the estate of the latter to be set off on execution. The entire value of the premises, including the homestead right, was appraised by the committee at $600, and they were set off to the creditor, “ subject to a family homestead.” As the result of these proceedings, the parties became tenants in common.
Upon petition by the creditor for partition, the court decreed that the committee to be appointed to make partition should assign to the debtor so much of the estate as they might find to have been of the value of $500 on the day of the completion of the levy thereon, September 22, 1866. Barney v. Leeds, 51 N. H. 254. By agreement of the parties, N. B. Felton, alone, was appointed a committee to make partition. That committee has made his report, wherein he finds that the premises cannot be divided without great prejudice. He also finds that the value of the whole, September 22, 1866, was $800, or $200 more than the value appraised by the committee on that occasion. Upon the question of the value of the premises, the plaintiff was permitted to testify, subject to the defendant’s exception; and the committee reports that if the plaintiff’s opinion in reference thereto was not competent, then he appraises the premises at $600.
The first question, therefore, naturally presented, relates to the competency of this testimony, concerning which the committee reports as follows:
“ To qualify himself to give his said opinion, said Barney first testified that he had lived in the village in which said premises are situated for twenty years and over last past, and knew said premises in 1866, and about the time of the completion of said levy bought and sold similar real estate situated in said village, and near said premises, and had known other similar real estate in said village bought and sold by*142 other persons about the same time, and at other times, and the prices at which the same was bought and sold.”
We think the plaintiff’s testimony indicated that he was abundantly qualified to express an opinion as to the value of the property, and if he was a competent witness concerning the subject upon other grounds, there was no error in the reception of this evidence.
But the defendant contends that the plaintiff is estopped by the proceedings of the extent upon which his title depends (a part of the machinery of which was a legal appraisal of the whole estate at $600), to aver a fact, or express an opinion, at variance with the result of that appraisal.
This position, if not technically correct, is so far practically sufficient for the defendant’s case that the judgment of the appraisers upon the levy of the execution must be regarded as a conclusive determination of the value of the estate at that time. Although a man cannot probably be precluded by the doctrine of estoppel from entertaining and even expressing an opinion merely, that opinion is of no consequence if not available as evidence.
The appraisal was the solemn adjudication of the tribunal appointed by law to assess the “just value” of the premises. Comp. Stats., ch. 201, sec. 1; Mead v. Harvey, 2 N. H. 496; Hovey v. Bartlett, 34 N. H. 281.
It is as conclusive as a judgment rendered upon a legal verdict, and cannot be attacked in this way. The record must be held conclusive, until, by some proceeding brought to operate directly upon the record itself, the levy is avoided. Pratt v. Jones, 22 Vt. 345.
A petition for partition is not a proceeding to impeach, revise, or vacate the record of a former legal proceeding. A judgment, “ so long as it stands in force, pro veritate aecipitur, and cannot be contradicted.” Co. Lit. 168 a; Ladd v. Dudley, 45 N. H. 61, 66.
In Fletcher v. The State Capital Bank, 37 N. H. 369, at page 401, Sawyer, J., says, — “ The return of the officer and the certificate of the appraisers embodied in it or accompanying it, and thus constituting an essential part of the return, which makes the record title, so far as it sets forth their acts and proceedings required by law in making the extent, must be held to be conclusive when set up by one claiming title under the extent. The case falls within the general doctrine in relation to the returns of officers upon process, that as to the parties, and those claiming as privies, and all others whose rights and liabilities are dependent upon the proceedings, the return of matters material to be returned is so far conclusive that it cannot be contradicted for the purpose of invalidating the proceedings or defeating any right acquired under them. And the principle, in its application to the return of an extent, derives a double support from the record nature of the title acquired, and the infinite mischief that must result from holding that as such record title of real estate it is open to the uncertainties of parol proof, in reference to the áets and doings of those whose proceedings are essential to its validity.” The proposition here is to show
But the defendant insists that the court has no power under the statute to require either one of these parties to sell or purchase the surplus of the estate after the assignment of the exempted portion.
The position is, — 1. The court, in passing judgment upon the former case, reserved between these parties, and reported in 51 N. H. 287, prescribed and directed that partition should be made between these parties “ by metes and bounds,” and not otherwise. 2. By virtue of the homestead act, Comp. Stats., ch. 196, the ivhole estate cannot be assigned either to the creditor or the debtor, except under the provisions of section 4 of that act, which it is said apply only to the case where the debtor does not make application to have his homestead set out, as provided in section 3. 3. Since the homestead act provides in section 3 for setting out to the debtor a homestead such as he “ may select,” it follows that, if he does make such application and selection, he is entitled at all events to have and to hold his homestead in severalty, and cannot be compelled to sell it to his creditor, for the reason that it cannot be conveniently divided and set off by metes and bounds; and as the result of all this, that, in a case like the present, where the estate cannot be divided, no partition can be had: hence the conclusion would seem to follow, that the party entitled to the homestead is also entitled to all the rest of the estate. 4. If the statutes relating to partition do not subserve this view of the • law, they are unconstitutional. 0
These views are advocated in an able, lengthy, and ingenious argument ; but whatever weight may be due to the argument or to portions of it, we fail to recognize and cannot reach the result indicated by the defendant’s counsel.
In the first place, with regard to the purport of the judgment pronounced in the former case (51 N. H. 287), we think it ought to be as manifest to the learned counsel as it is certain in the minds of the court, that neither the court as a body, nor the author of the opinion, ever for a moment entertained the idea of directing that partition should not be made otherwise than by an actual setting out of a portion of the estate to each party by prescribed metes and bounds, provided it should turn out that the estate was practically incapable of such a division. That contingency was not contemplated or suggested, nor, indeed, was any formal order or judgment concerning the method of partition made; but the court, quite naturally, followed the language of the statute in suggesting that the committee “ should [not must] assign to the defendant by metes and bounds ” his interest in the premises at the value existing on the date of the levy, — the only question raised by the case being simply as to the date of the computation of that value.
We have recently had occasion to reiterate and affirm the settled doctrine, that in this country the power of compelling partition is in
We fail to discover in section 4 of the homestead act any limitation of the provisions of the section to the case only in which the debtor has made application to have the homestead set out to him, nor does any reason for such limitation occur to us ; neither can we regard the plaintiff as estopped to ask for partition, by his failure to pursue the remedy given him by section 4, which remedy was not indicated by the form of the proceeding adopted by the appraisers at the time of the extent. We do not regard the form of the appraisal and extent, namely, an appraisal of the estate at $600, and the setting off the creditor’s interest in the same as of the value of $100, subject to the debtor’s right of homestead therein, as any indication of opinion, much less a formal judgment of the appraisers, that the estate was incapable of partition.
Now this estate is found to be incapable of partition by metes and bounds, and the debtor is entitled to his homestead, — but just as much is his creditor entitled to the payment of his honest demands out of the residue of the estate; and we cannot conceive that the homestead act was ever intended to receive a construction that should enable a dishonest debtor to hold, exclusively, a large estate, including a homestead which could not be conveniently separated from it, without yielding up something to the creditor by way of equivalent for the surplus estate.
The law intended a favorable regard for a poor debtor, but not immunity and protection for a dishonest one. In providing for the debtor’s relief, it does not ignore the creditor’s rights. But the defendant insists that he ought not to be compelled to sell his own homestead right, which is absolutely secured to him by the law, nor to purchase contrary to his will the residue of the premises. And there is very great cogency in the suggestion. However it may be in this particular instance, a case may readily be supposed in which such a requirement would be, if not impossible of execution, at least productive of great hardship and injustice. Suppose a piece of real estate absolutely incapable, in the judgment of the court’s committee, of division, and worth $20,000, the property of two brothers, derived by inheritance from their father, and that neither of them has any other property: the right of both to have partition, so that each may have and enjoy his estate in severalty, is beyond question to be regarded as the law in this state. This right, of course, is and must be qualified so far as this, — that if the estate is absolutely indivisible, an actual share or part of the premises cannot be given to each. But in the recent case of Crowell v. Woodbury, 52 N. H. 613, 615, it was shown that “ long before any court having general chancery powers was established in this state, the concurrent juris-i diction of equity, in making partition of land held in common by coparceners and tenants in common, had become perfectly established,’!
But nothing can be clearer than that an assignment of the whole to one, and an order that he shall pay to the other the estimated value of his share, is no partition at all. It is, in effect, a forced sale of the share of one to the other, — a compelling of one to purchase the portion of the other, whether he wants the property or not, and whether he has the means to buy it or not, at a price which ho lias nothing to do with fixing.
It is thus observable that serious and, as it seems to me, insuperable difficulties, both practical and legal, stand in the way of giving to sec. 25, ch. 228, Gen. Stats., a construction whereby such forced purchase is compelled.
Now, in the case supposed, of the two brothers, who have inherited an indivisible estate of large value, and who have no other property, the whole being assigned to one against his will, a debt of $10,000 is imposed upon him against his will: how is he to pay or secure it ? He may, perhaps — not certainly — if he so chooses, make security by way of a mortgage of the whole. But suppose he objects to the burden of so large a debt, and declines to execute the mortgage: W'liat then? The other party must sue the judgment, and, there being no other property, he must seek security by an attachment of the whole estate which has passed to his brother by force of the judgment upon the so-called partition. A levy of an execution makes the parties tenants in common again, inasmuch as the premises cannot be divided — Gen. Stats., ch. 218, sec. 8 ; and the parties find themselves at last just where they started, except that they have incurred the expense and annoyance of fruitless litigation. All this is but folly, injustice, and oppression.
We are therefore of the opinion that the statute under consideration (Gen. Stats., ch. 228, sec. 25) is capable of no other construction, when applied to a case like the present, than that the whole estate may be assigned to one party, provided he is willing to take it, he paying the other party the sum awarded by the committee; and that in all cases where division by partition under the statute cannot be made, by reason of the nature and situation of the property, the parties are left to the ample, flexible, and more appropriate remedies of equity, whereby the entire estate may be sold, and the rights of the parties settled and determined upon equitable principles.
The plaintiff may, if he chooses, pay to the defendant $500, with interest from the date of the levy, whereby the defendant will receive the value of his homestead right; or, the defendant (who may have the
The report may be recommitted for amendment in accordance with these views, and, if the parties act upon the foregoing suggestions, there may be judgment on the report as thus amended. Otherwise this petition
Must he dismissed, and the parties left toseelc relief hy proceedings in equity.