Buck v. Hardy

6 Me. 162 | Me. | 1829

. Weston J.

delivered the opinion of the Court.

It might deserve consideration, whether it is competent for the tenant, who holds under a title found by the jury to have been fraudulent as against creditors, to take the exceptions upon which he relies to defeat t-lie demandant’s levy. This point however it will he of no importance to decide, if the exceptions raised are not of a character to be sustained. . It is insisted that the course taken by the creditor, and by the officer under his direction, has deprived the judgment debtors of the right, to which they were by law entitled, to choose an appraiser. -The creditor may elect at what time, before the return day of the execution, he will cause it to be levied. He may be impelled, from just apprehensions of being anticipated by others, to proceed immediately. The debtor is to be duly notified by the officer, if he be living within the county. As the authority of the officer, through whose agency the levy is made, is limited to his own county, the law does not require him to perform an act of official duty elsewhere. The officer, in his return, as amended by permission of court, states that he made search for the judgment debtors and could not find them; and he further adds that they were not within the county. It was not in his power then to give them personal notice ; and it was his duty to complete the levy, that the rights of the creditor might not be defeated. Upon these facts it would be reasonable, although we would not be understood to de-termíne it to be absolutely necessary, that he should leave notice at their last and usual abode, that if there was any one there to whom their affairs had been confided, be might have an opportunity to appear in their behalf. The period of six hours allowed by tho officer was ample for this purpose ; their residence being within a quarter of a mile of the premises. Neither ho nor the creditor were bound to await their return into the county. It might, have been hazardous to do so ; especially if they had occasion to be absent for some time.

It is not to be supposed that the officer would conspire with the creditor to seek an opportunity to proceed in the absence of the debtor, with tho view to deprive him of his right to appoint an appraiser. Whether if such a fact was made out to the satisfaction of a jury, the levy might not be defeated on the ground of fraud, or whether the party aggrieved might not avail himself of some other adequate legal remedy, it is not necessary now to determine.

It is further urged that in extending executions upon real estate, the statute requires metes as well as bounds j and that here although bounds are given, metes are not. By metes in strictness may be understood the exact length of each line, and the exact quantity of land in square feet, rods, or acres. It would be going too far to require that this should be set forth in every levy. The legislature intended that the land should be described with such certainty, that there could be no mistake as to its location. Metes result from bounds; and where the latter are definitely fixed, there can be no question about the former. The bounds are here given with great exactness, and as the metes are with certainty deducible from them, they may be considered as also given, by necessary implication.

We entertain no doubt that an execution may be levied upon a chamber in a house or store, which may be set off as a distinct and separate freehold; and if so, a right of ingress and egress by an outer door, entry and staircase may be given as incident and necessary to its enjoyment. In Taylor v. Townsend, 8 Mass. 411, Parker J. in delivering the opinion of the court, says, “ It sometimes happens that the chambers of a house are sufficient to sat-ifofv an execution, sometimes the lower rooms and collar; now it is absurd to suppose that these may be taken and set off to the creditor, and yet that no passage through the entry and staircase can be given.” Judgment on the verdict.