7 Conn. 350 | Conn. | 1829
Lead Opinion
Several objections have been raised against the validity of the officer’s return, which will now be considered. Here I admit the principle advanced by the counsel, and adopted by those members of the Court who dissent from the opinion to be given, that every requisite to a valid levy must appear on the return, by express words, or by reasonable construction.
1. It is suggested, that several items in the bill of fees charged by the officer, and for which, as well as for the debt, the land was taken, were not provided for, by the statute on this subject. This is true ; and were this a fatal objection, still it is removed by the confirmatory act of May, 1826. That this act is constitutional, and did embrace this precise objection» was decided, by this Court, in the case of Beach & al. v. Walker, 6 Conn. Rep. 190.; and the principle ofthat decision was recognized recently, at Hartford, in the case of Norton v. Pettibone & al. 7 Conn. Rep. 319.
2. It is said, that the officer has not returned, that he could not find any personal property whereon to levy, &c. He has certified, that he demanded of two of the debtors in person, and of the other at his usual place of abode, money to pay the execution, or personal property whereon to levy, and a refusal of the debtors to pay the execution or expose property. What moré could have been done? Was he bound to search
3. It is objected, that by this return, it does not appear that the land was set off to the creditor. The answer is, the land was levied upon, and the right and title of the defendant was appraised, and that was set off. This is a statute conveyance of the land. The right and title to land is the whole of the land. It gives to the plaintiff the right to the use, occupation and disposal of it, and of course, the entire ownership of it. Co. Litt. 145. b. Hitchcock v. Hotchkiss, 1 Conn. Rep. 470. Camp v. Smith, 5 Conn. Rep. 80.
4. It is not alleged, that the justice of the peace, who appoint-ad an appraiser, could judge between the parties. Who ever supposed before, that such an allegation was necessary ? It might, with as much propriety, be contended, that it should appear that he was not insane by the visitation of God. It is never necessary, in pleading, to negative the exceptions which may exist against a judge or justice, before whom a suit is commenced.
There are two other objections, which deserve more consideration.
5. It is insisted, that it should appear, by the officer’s return, that the appraisers were indifferent freeholders of the town in which the land lies. I concur in this opinion. The statute requires, that where land is set off on an execution, it should be appraised by indifferent freeholders of the town where it lies. The officer, as is agreed, has certified, that they were “ freeholders of the town.” The only question then, is, does it appear that they were indifferent 1 Now, they have given to the officer a certificate that they were thus indifferent; and he has annexed that certificate to his return, and procured it to be returned and recorded in the office of the clerk of the court. This is an adoption of their certificate, and a virtual averment that they were indifferent freeholders. The Chief Justice, in delivering the opinion of the Court, in Pendleton v. Button, 3 Conn. Rep. 406. says : “ The act of the justice in appointing
6. The last objection is, that it does not appear by the return of the officer, that the appraisers delivered a certificate of their appraisal to the officer, or that they ever made any such certificate ; and this objection is said to bring the case directly within the decision of Metcalf v. Gillet, 5 Conn. Rep. 400. I do not so consider it. In that case, no mention was made, by the officer, of any certificate of appraisal. No certificate was appended or annexed ; nor was any intimation made, that one was ever given. To supply this defect, parol evidence was offered, to shew, that such certificate was made by the appraisers. This was very properly rejected. In this case, the certificate made by the appraisers, is annexed to the return, and by the officer lodged with the clerk. A copy is now of-, fered of the whole from the clerk. By fair implication, then, this certificate was in the possession of the officer. But it is said, that it must have been in his possession, by delivery of the appraisers, before he set off the land ; for the statute is, that “ thereupon (i. e. upon the certificate’s being delivered to him) he shall set out to the creditor,” &c. Suppose this to be the true construction of the act, I insist, that it is but a reasonable construction of his return, that he had it before he set out, or set off, the land ; because he could not set it off before he knew its value, and he could not know its value but by the certificate of the appraisers ; but he did set it off, knowing its value ; for he asserts its value in his return. Then take for a guide a plain rule of law, that every man acting officially, shall be presumed to have done his duty until the contrary appears ; it ought to be presumed, that this certificate was delivered to him before he set off the land.
Thus it would stand upon the most rigid construction of the statute. But it is difficult for me to see any force in the sug-
Concurrence Opinion
I have the misfortune to differ from the Court, in this case. I should content myself with the mere declaration of my nonconeurrence, were I not persuaded, that some of the principles advanced tend to jeopardize the title to land, and to produce general inconvenience. From the officer’s return it does not appear, that the land levied on was appraised by indifferent freeholders ; nor that before the land was set out, an appraisement in writing was made and delivered to the levying officer. Both these are indispensable requisites to a legal title. It was correctly said, in Hobart v. Frisbie & al. 5 Conn. Rep. 592. 595. that “ the acquisition of real estate by execution is derived from statute ; it is in derogation of the common law, and is stricti juristhat “ the rigid rules of the summum jus ought to be enforced, and an omission of any statute requisite is fatal.” To the same effect was the opinion of the court in Williams v. Amory, 14 Mass. Rep. 20. 29.
The return of the officer on the execution is the legal and only evidence that the prescriptions of law have been complied with. If that is deficient, it never can be aided, by oral testimony, probable presumption, or in any other manner. Like other legal instruments, it is susceptible of construction ; but this is made only by giving to the words of the return their plain popular meaning, and assuming any fact that appears by a strictly necessary inference. Hobart v. Frisbie & al. 5 Conn. Rep. 400. Fisher v. Blight, 2 Cranch, 390. Curtis v. Hurlbut, 2 Conn. Rep. 315. Williams v. Amory, 14 Mass. Rep. 20.
The return was made and signed in the usual form, comprising all the necessary facts, except those before-mentioned. The land is then set out in the accustomed manner. A certificate of appraisement, bearing date the 6th of January, 1826, declaring, that the appraisers are indifferent freeholders, next succeeds. After this is subjoined the justice’s certificate of the administration of the oath, on the 19th of December, 1825 ; the entry of the register, that on the 10th of January, 1826, he received the execution for record ; and that of the clerk of the superior court, that on the 14th of the same January, the execution was returned into his office. These entries and certificates, not referred to by the officer, are all that appears.
I am of opinion, that the certificates before-mentioned, are no part of the officer’s return ; and if they were, that they would not aid the defects alluded to.
1. The usual mode of authenticating an officer’s return, for centuries, has been, by the subscription of his name, and the expression of his official character. The return has always been subscribed or signed ; words in relation to this and other legal instruments, of equivalent meaning. I have never heard or read of a valid return, not signed or subscribed. This signature is, invariably, at the close of a return, and of all other legal instruments, except those under the statute of frauds ; and to those I am prepared with a distinct answer. Whether the instrument is a deed, a bond, a covenant, or a return, the invariable usage has been, as far back as legal muniments reach, to authenticate them, by subscription. I am not aware that an instance to the contrary has occurred, except the practice under the statute of frauds. From this uniformity of usage, the expression that a contract or a return was signed, has hitherto conveyed to the mind an idea as perfectly defined and unequivocal as language can impart,
I admit, that by usage, any mode of authentication may be sanctioned. But I assert, that no usage has ever existed ex
It has been said, that the certificates were subjoined with the intent of making them a part of the return. This assertion, in my opinion, is wholly gratuitous. The intention is a question of fact; and how is this court, a court of law exclusively, to determine it ? It has not the competency, because it has not the means of determination. The certificates may have been annexed as paramount evidence, to sustain the officer’s return, in case it should be controverted ; and for this sole purpose. Hence it is not a necessary inference, that they were intended to be a part of the return. It was, however, asserted in the argument, that the intention claimed, appears by probable presumption. But is this court competent to settle the fact, if it presumes it to be probable ? Certainly not. In short, whether the certificates were subjoined for one purpose or for another, is a mere matter of fact, and beyond the competency of this court, unless the inference is strictly a necessary result. Metcalf v. Gillet, 5 Conn. Rep. 400. On the point in question, this will not be pretended. On the contrary, there is much reason for the as
In the argument it was said to have been an universal practice to annex to an officer’s return on an execution, the certificates of appraisers, and of their appointment and oath. If this were the fact, it would be of no avail, unless it was intended to make them a part of the return. But the fact is not admitted ; and for two reasons. In the first place, as clerk of a court, I formerly recorded many executions, and to much the greater part of the returns no certificate was subjoined. I now have in possession a book of recorded executions, consisting of more than a hundred; and on recurrence to them, I have found that more than one half are without a certificate appended to the returns. From this specimen, as well as from general recollection, I am satisfied, that the object was merely the preservation of evidence ; and judging from the known characters of the officers, I am convinced that the extremely careful and apprehensive alone resorted to this expedient. In the next place, I cannot admit the competency of the court to settle this question of fact. It is of a private nature, of which the court cannot, ex officio, take judicial cognizance. 1 Chitt. Plead. 217.
What the usage of officers has been throughout the state, I neither know, nor, sitting here, have the means of knowledge. Usage, like most other facts, might be established by evidence ; and the instances to support it must be not few or partial, existing in one or two counties only, or with one or two officers only ; but there must have been a long, regular and general practice. 2 Marshall, 393. When such an usage has been established, by the decision of this court, it may then be recognized without proof; but not before.
It was observed by the plaintiff’s counsel, that in cases under the statute of frauds, by numerous decisions, the person promising may sign in any part of the instrument. The principle was stated imperfectly. Courts have held, that the signing of an act or contract required by the statute of frauds, must have the effect of giving authenticity to the whole instrument; and when the name is inserted in such a manner as to have this effect, that it does not much signify in what part of the instru
To the decisions under the statute of frauds, in their application to this case, I have two objections. In the first place, they never ought to be extended by analogy. So far as they have gone, with some reluctance, I would follow them ; but there I would stop. They had their origin in a boundless latitude of construction, in subversion of language the most clearly defined by familiar usage ; a construction most unwisely indulged in relation to a very beneficial law ; a construction that has impaired, and threatened to destroy the guard which it was the purpose of the law to provide. The word signing, taken in its ordinary popular sense, is a complete key to all the other terms in the clause concerning devises ; and yet the construction of this material term has been quite contrary to its import and received interpretation. Powell, in his Essay on Devises, p. 63. has said : “ The word signing conveys to a common ear, not versed in technical reasoning, a mere simple idea, viz. the writing of the name of the agent at the bottom of the act, thereby formally authenticating it as his. It requires, (he adds,) the ingenuity, therefore, of a schoolman, so far to wrest this word from its natural sense, as to construe it to mean the recital of a name in any part of an instrument, where common form or accident may happen to introduce it. Nothing but the strong bent of the times in favour of this mode of alienation, which equally pervaded the courts of law and the people, and which had induced that loose construction of the word writing in the statute of wills, that rendered the statute of frauds necessary, could have given colour to the argument
In the second place, I observe, that the cases determined under the statute of frauds, are not analogous to the one under discussion. When a person begins his last will, by saying, “ I, A. B., make this my last will and testament,” or commences his contract, by the assertion, “ I, C. D., promise in manner following,” the nature of the cases, independent of usage, would seem to indicate, that the whole of the writing, of which the name is a part, should constitute the will or agreement intended. They may be said to form one continuous and inseparable instrument. But when a return is made and officially subscribed, it is perfect, complete and exclusive. Certificates subjoined, without any reference to them, are separate instruments, having with each other no necessary connexion, and the signature of the return implies no intent, that it should likewise be a signature of the certificates. If all was intended to make one return, why does not the officer say so ? There is no ground for applying the observation on which the determinations under the statute of frauds rest, that the name was designed to give authenticity to instruments thus distinct and disjoined.
Here, again, has occurred an argument founded on probable presumption ; an unusual argument in reference to a return, which the law requires to be certain and complete, either per se, or by express reference. This Court is incompetent to settle a fact, on probable evidence. It is the converse of the established rule, that in a return every necessary fact must appear by a fair construction of the expressions used ; and that the exposition of it cannot, operating as it does in invitum, outrun the meaning of its words. Metcalf v. Gillet, 5 Conn. Rep. 404.
I entertain no doubt, that the recited certificates are no part of the officer’s return.
2. If, however, they are considered as part of the return, the return still is incurably defective.
That the written appraisment reached the hands of the officer as early as the 10th of January, is admitted ; for, on that
It was said in the argument at the bar, that the certificate bearing date on the 6th of January, it is a presumption, that it was delivered at its date. What presumption, I ask; — of fact, or of law ? Not of fact; for, at most, it is a probable presumption, which this Court has not the competency to draw. Neither is it a presumption of law. The presumption lies the other way ; for the law has established, that the return of the officer is the requisite evidence, and that it authorizes no inference, w'hich is not strictly necessary. If it be enquired, why this rigour ? I answer, because it is within the power and it is the duty of the officer to speak intelligibly, and to the point. Besides, the person whose land is taken from him, by the strong arm of the law, and creditors who have an interest in the question, have a right to demand clear and undoubted evidence, that every requisite of the law has been observed. For these reasons, it stands on very different ground from the date of a bond, note or other contract. In respect of these, the contractor will take care of himself; and so far is this principle carried, that the construction, if there be any ambiguity, shall be taken most strongly against him.
I, then, assume these facts ; that the land was set out on the 6th of January, and that the appraisment was not delivered to the officer until four days afterwards.
The statute requires, in so many words, that the estimate of the value of the land shall be delivered to the officer, “ who shall thereupon set out the land to the creditor.” Sect. 76. p. 57. In Metcalf v. Gillet, 5 Conn. Rep. 400. this Court decided, that “ until the officer is possessed of the appraisers’ certificate, duly executed, he cannot set out the land on execution and in Bill v. Pratt, 5 Conn. Rep. 123. the same point was adjudged.
In opposition to this reasoning, it was, first contended at the bar, that as the appraisment bears date on the 6th of January, the Court will presume that it was delivered on that day. I have endeavoured to answer this position, and to show that the Court cannot presume the fact; that the presumption of law is against it, by its requisitions of a certain return ; and that the debtor can be deprived of his land, only by a return, clear,
It was next contended, that the setting-out of the land is no one particular act; but that it is a general proposition, comprising all the acts necessary to make out a title ; of consequence, that it is true, only when the last act creating the title has taken place. This cannot be correct. The officer never sets out the title : it is the law that conveys it. The facts required must appear from the return ; and then the title results as a legal consequence.
The expressions of the statute on this subject, are too clear to be mistaken. On the reception of the certificate of ap-praisement, the law declares, “ that the officer shall thereupon set out to the creditor, by metes and hounds, so much oi the lands as may be sufficient,” &c. It is the land that is to be set out; and that is made the object to which the expression refers. The land is to be set out in fact to the creditor ; that is, it is to be located and indentified. But how is this to be done ? The statute declares, expressly, “ by metes and bounds.'” The meaning of the expression set out, when applied to substance, is, “ to assign, to allot, to mark by boundaries or distinctions of space.” Webster’s Diet. And when the mode of setting out is prescribed to be by “ metes and bounds,” the intent of the legislature is unfolded with the irresistible force of demonstration. The time when this is to be done, discloses the reason of the requisition. It is immediately after the reception of the appraisers’ estimate of the value of the land. Before this, the officer has not the means of determining what quantity of the land must be set out. He now has the means; and “ thereupon,” he is required to do the act, identifying the land requisite, by visible monuments.
Such is the plain expression of the statute; and such has been the invariable construction. It is to be found in all the returns made on executions. They declare, that on a certain day, the land was set out; and it was well understood, by the levying officer, in this case. “ I da thereupon,” says the officer in his return, “ on this 6th day of January, 1826, by virtue of this execution, hereby set off to the creditor, &c. the above-described piece of land.” The cases of Bill v. Pratt and
It was, lastly, claimed by the plaintiff’s counsel, that admitting the land to have been set out on the 6th of January, the subsequent proceedings of the officer validated the levy, by recognition. I cannot admit this principle. It is the return that gives validity to the levy, and not the subsequent parol recognition of the officer. As applicable to this subject, the principle is altogether new. That a person, by ratihabition, may bind himself in a contract, made for his benefit, as if there had been a precedent command, is not disputed ; and for this plain reason, that the law has prescribed neither the mode nor the time of declaring his assent. But in the law regarding the levy of executions, this principle has no place. Facts must be returned with certainty, authenticated by an artificial signature ; and they must be true at the time when the return is subscribed. This is established law ; and a deviation from it, to meet a particular mischief, which may be productive of general inconvenience, in my opinion, is entirely inadmissible. I may be permitted to doubt whether there is any mind of so long and sure a reach as to be able to anticipate the consequences of such a change.
In the expression of my opinion, I am sensible, that I have run to a great, and, perhaps, unreasonable length. But I have been induced to it, by the desire of preserving, so far as is within my power, what I consider to be principles, long and wisely established. The branch of the law relative to returns, is very antient; and it is may ardent wish, that its certainty and simplicity may not be impaired. In this subject the community has a deep stake. It is, comparatively, of little inconvenience to require rigid strictness in the returns of officers on executions. The provisions of the law in relation to their levy are few, simple and easily complied with, except by those, who neglect to read a single section, that concerns the performance of their duty. On the other hand, if persons who search the records of land titles, to ascertain the validity of a levy, cannot rely on the plain meaning of familiar words, authenticated by an official signature, but are driven to investigations, which require the learning and talents of a profound lawyer, I am very apprehensive, that great inconvenience will result.
Return sufficient.
