Baxter v. Tucker, 1 D. Chip. 353

Baxter v. Tucker

1 D. Chip. 353 | Vt. | 1815

Chipman, Ch. J.

delivered the opinion of the Court.

If the statute of limitation is, as contended by the defendant’s counsel, a peremptory bar in this instance, it is certainly a very hard case and contrary to equity. The Court however are of opinion, that the statute of limitations in the clause relied upon contemplates only the case of a judgment, which has been suffered to lie dormant eight years — no satisfaction appearing of record. The law goes oil the presumption that a judgment would not have been suffered to lie so long unsatisfied; it presumes that the judgment had been paid and satisfied by some arrangement between- the parties, but through neglect not entered of record, which, after so long a time elapsed it would be difficult to prove, by such evidence as the law requires. This principle applies to a case, where, at common law, the plaintiff might have his remedy by action of debt or scire facias qua, executionem non. Such is not the case under consideration j the plaintiff could not have the common law remedy, either of debt or scire facias. By the return of the execution the judgment appears on record to -be satisfied; to a plea of this in bar, the plaintiff could, in such case, make no sufficient replication: so that he was, at common law, without a remedy; yet there can be no doubt that in an equitable view of the case, he is entitled to be provided with a remedy, and this remedy is given by the statute directing the serving and levying executions. The 9th Section of that Act provides, that when it shall appear that the property, on which the levy or extent had been made, for satisfying an execution, did not belong to the debtor, the creditor shall have a sc ire facias *356against the debtor requiring him to appear and shew cause why he the creditor should not have an alias execution on his judgment; and, if no sufficient cause be shewn to the contrary, that he shall have an alias execution accordingly. This is a new remedy given by the statute, which has adopted and appliédjthe common law writ of scire facias qua. extentionem non, which alone was contemplaed in the statute of limitations, to a new case. The creditor’s right to this remedy accrues upon the happening of some event, by which it can be made legally to appear, that the property or estate, on which the first execution had been levied, did not at the time of the levy belong to the debtor, in consequence of which the creditor has lost his satisfaction; but this very often may not happen until a much longer time than eight years has elapsed after the rendition of the judgment; so that, agreeably to the defendant’s construction of the statute of limitations, the creditor’s right would very frequently be intercepted and prevented before it could accrue. This iniquitous absurdity is prevented by giving a just and proper construction to the statute of limitations on this subject, by confining it to the case of a sciere facias qua. ex, non. at common law, which super-cedes all necessity of imagining an equitable saving to prevent injustice. But it is farther insisted by the defendant’s counsel, that the plaintiff has not in his scire facias set forth matter sufficient to bring his case within the statute on which he relies — that he has not made a case to entitle him to an alias execution. To be sure, if the plaintiff undertake to set forth facts from which to draw a conclusion of his right, and the facts do not warrant that conclusion, he must fail. In this case, the plaintiff, after having set forth the levy of his execution on the lands described, goes on to state that he let the same lands by lease to J. R. for a term of years, but gives neither the date of the lease, the number of years, nor the commencement or end of the term; nor, indeed, whether by writing or parol. He farther says that J. R. during the continuance of the term, commenced an action of ejectment, before the Circuit Court of the United States, on the third day of October, 1807, for the recovery of the same lands against F. K. who was in possession claiming title; and that such proceedings were had, that at the Circuit Court of the United States holden at Rutland, in and for the District of Vermont, on the third Monday of October, 1808, J. R. the plaintiff in that *357action, became nonsuit, whereby a right accrued to the present plaintiff, &c. Such is the substance of the case which the plaintiff has made-such are the facts from which is to be drawn the conclusion, that the debtor, the present defendant, was not the owner of the land, on which the execution was levied, and, certainly, the facts stated afford no such conclusion. For any thing that appears, F. K, the debtor might have derived a title from the present plaintiff, elder than that of J. R.; he might have been a mere trespasser-he might or he might not have claimed under an elder and better title, through Tucker the debtor. But whatever the title might be, no decision was had upon it.

J. R. the lessee, abandoned and became nonsuit, From this statement it does not appear that the debtor was not, at the time of the levy, owner of the property, or that the plaintiff has not now a good title, under the execution. ■ The proof in this case lies on the plaintiff-he cannot call on the defendant to make out the title. There must therefore be

Judgment for the defendant.