13 N.H. 14 | Superior Court of New Hampshire | 1842
The decree in this case may be regarded as establishing an equitable title in the plaintiff, George Buffum, so that without the execution of any deed by Esek Buffum, the defendant, in pursuance of it, the court would put the plaintiff in possession by a writ of assistance, if necessary, and protect his possessionjby an injunction against
In New-Jersey, by statute provision, a decree for the execution of a conveyance is deemed equivalent at law, and in equity, to the conveyance itself. 2 Hoffman's Ch. Pr. 95.
But a party who has obtained a decree for a conveyance, is not bound to rely upon the evidence of an equitable title furnished by the decree. He has a right to have the decree enforced by the process of the court, if the adverse party refuse to obey it. 1 Smith's Ch. Pr. 428. The court has the power to 'issue all process necessary to carry, its decrees into effectual execution. Hopkins' Ch. Rep. 231, Ludlow vs. Lansing; 4 Johns. Ch. Rep. 613.
In England, by a late statute, the court may appoint one of the masters to execute a deed, when the party is in prison, on process for his contempt.
In the present case, the plaintiff in the suit has done all that can be required of him, and perhaps something more. It appears that, in the first place, he caused a copy of the decree to be served upon the defendant. This seems to have been unnecessary. It is not sufficient to authorize an attachment. 1 Smith's Ch. Pr. 429. He next served the defendant with a writ of execution of the decree, so called, which was the regular course. This not only furnished the defendant with a copy of the decree, duly certified, but contained the command of the court that he should immediately, and effectually, fulfil and execute all the matters and things contained in it, and remaining to be performed by him. And the evidence shows that the plaintiff caused a deed to be prepared, and tendered to the defendant for execution, which the latter refused to execute.
The excuse of the defendant, that he intended to petition for a re-hearing, is not sufficient. If he desired, for that reason, to be exempted from the performance of the decree
But the execution of the deed, in pursuance of the decree, will not conclude him upon this point; for the court possesses sufficient power to vacate his deed, and restore the property, should the dpcree be set aside upon a rehearing.
Nor can his allegation that he acted under the advice of counsel, if such be the fact, (of which there is no evidence,) avail to excuse him from performing the decree of the court. 4 Paiges Ch. R. 163, Hawley vs. Burnett.
The remaining question is, what further order shall be taken upon this process for the contempt ?
An attachment against the party, for a contempt of this character, seems not to be regarded as a criminal proceeding to punish the disobedience, but as a remedial process for the benefit of the party obtaining the decree. 4 Paige 163.
In New-York, by a statute provision, the party in contempt may be fined. But the fine seems intended as an indemnity to the other party for costs and expenses, and not for the benefit of the county. 2 Paige’s Ch. R. 330, The People vs. Spaulding ; 4 Paige 284, The People vs. Burnett.
We have here no statute of that character, and the plaintiff in the suit can be no farther indemnified for the delay and expense, than the costs which he recovers in this proceeding may operate as an indemnity.
The defendant may be discharged upon the execution of the deed and the payment of the costs.
