Eastman v. Curtis

4 Vt. 616 | Vt. | 1832

After argument,

Williams, J.,

delivered the opinion of the Court. — This is an action of ejectment to recover the title and possession of land which was taken from the plaintiff by the levy oí an execution on the 9th of November, in the year 1818. It is admitted that the title is in the plaintiff, unless he was divested of it by that levy. Several objections have been taken to the judgement and levy, which the plaintiff says show that the levy was void. It is to be remarked in the outset, that the levy of the execution on the land in question extinguishes so much of the plaintiff’s debt as the value of the land, as found by the appraisers. The statute of limitations has run on that judgement. If the plaintiff recovers, the judgement is satisfied, and he recovers back the property by which it was satisfied. This would induce us to examine the subject with caution and deliberation, and if the result should he, that the land did not pass by the levy, a bill in chancery might compel the plaintiff either to pay the debt, or further assure the title acquired under the levy. Taking property on executions, it is true, is a proceeding “ in invitum,” and the forms and requi-s'tes l^e ^aw rmist he observed. It is also true, that levying upon land is taking the property of a debtor without sacrifice, at a ^dl an<* fair value, and in discharge of a legal obligation. Iff SÍlon’'!t is onl-v do!nS what tIle debtor ought to do, taking his property to pay his debts ; and herein it differs from those cases where a sale is made to enforce the performance of a public obligation imposed by law, and not by the personal contract of the obligor, as sales for taxes, or sales of property distrained, or property impounded. We have examined all'the objections which have been taken, and find none of them sufficient to avoid the levy. The judgement, on which the execution issued, which was. levied upon the land in question, appears to have been regular. Whether the court exercised their powers discreetly in ordering the party to close an issue tendered, or in entering judgement, it is not for us to enquire. If the judgement ought to have been set aside or reversed, it should have been done in some of the. ways which the law has provided. It is sufficient for the defendant that it is not void.

The levy in many particulars, where it has been objected to, appears to have been according to established forms. Other objections have been taken which have been ruled to be insufficient. It is not necessary for the officer to state that he has made a demand of the money, &c., as it is not essential to pass the title. The statute subjects real estate to be taken at the election of the creditor when the debtor neglects to expose and tender personal estate sufficient to satisfy the execution. If an officer should levy on real or personal estate, when the amount of the execution was offered to him, or upon real estate, when the debtor had exposed sufficient personal estate, he would be liable to any one who was injured thereby ; but I should very much doubt whether his misfeasance in this particular would affect the title of the purchaser of personal estate which he sold at auction, or of the creditor to whom the real estate was set off. At any rate, this return in these particulars is conformable to the forms which have been long in use, and is not to be disturbed here upon an objection which is so purely technical.

The second and third objections are wholly unfounded. If the parties mutually agreed upon the appraisers, each one did in fact choose an appraiser,and there was a strict compliance with the letter of the statute. It is at least singular, that the debtor himself on the execution should raise the objection.

The mistake in waiting the word disinterested is too trifling to merit a serious consideration. Nothing else can be understood than that the appraisers were “ disinterested,” |as the statute re-•quireSk

The objections, that it does not appear what land was shown to the officer, or what oath was administered, were considered as unimportant in the case of Galusha vs. Sinclair, 3 Vt. Rep. 394.

It is not true that a deputy sheriff is not an officer known in law. On reference to the statute concerning sheriffs, and also to other statutes, sheriff’s deputies are recognised as officers, and. made liable to fine on conviction for neglect of duty, &c.

It is not required by statute that the return should be under seaír nor is it required that the certificate of the appraisers under their hands, should accompany the return ; and it would only encumber the records if these, or the certificate of the oath, should be separately placed on the execution and recorded.

If the bill of fees was too high, the sheriff was liable ; but as-tbis levy was only in part satisfaction, the fees should have been reduced to what were legal, and the appraisal applied in satisfaction of the legal fees, and the residue on the execution, and an alias would have issued only for the just balance; but the misconduct of the officer in this particular cannot destroy the levy. Neither do I think that it could by any possibility have rendered the levy void if the appraisal had been in full satisfaction of the execution and bill of fees,although part of the fees were illegal. A question somewhat similar was decided by Judge hivingston, in the circuit court, in favor of the levy.

The 9th objection is not true in point of fact. It appears this •levy was made on the property of different debtors, and at different times ; and the aggregate of the several levies was applied. The whole of these levies constitute but one return.

The objection that it does not appear whether the land was set off to the administrator or heirs, and also the question raised on the offer of the plaintiff to disprove the fact certified by the officer, that the appraisers were mutually chosen, were both considered in the case of Hathaway vs. Phelps, 2 Aikens, 84, and overruled. The land was of course set off to the creditor ; and the return of the officer in relation to choosing the appraisers,is conclusive upon the parties and all claiming under them.

The case of Hathaway and Phelps might probably be considered as an authority in all the points in this case. In that case the question arose on objections taken to the levy of the same execution on the property of Erastus Hathaway, one of the judge-rnent debtors named in the said execution. 1 have no doubt, from reading that case, that the levy was in the same form, and liable to all the objections which have been raised to this. That case appears to have been much contested. The levy was called in question, and was established. Whether, however, these .objections which have been raised, were there discussed or not, we are all of opinion in this case, that the proceedings on the judgement and execution against the plaintiff, were regular ; that there is no valid or plausible objection to the levy, and that the plaintiff by that levy was divested of all interest and title to the land for which the suit was brought.

Hunt & Beardsley, for plaintiff. Turner, for defendant.

The judgement of the county court is affirmed.