11 Conn. 545 | Conn. | 1836
Lead Opinion
It has been contended, in this case, that the plea of the defendant is insufficient. It is not necessary to decide that point;-because, admitting the averments in the plea to be insufficient, they are answered by the replication.
The motion in error, then, presents two questions for adjudication.
1. Is the declaration sufficient ?
2. Upon the facts stated in the replication, and which have been found to be true, is the plaintiff entitled to judgment?
There is a third question, not raised upon the record, but which, by the agreement of counsel, has been argued, as on motion for a new trial; and that is, as to the effect of Mercy Sawyer's deed.
These questions will now be considered, though not in the order in which they have been stated.
It is claimed, that scire-facias is the appropriate, and, indeed the only remedy, where there is an apparent, but not a real satisfaction of the execution.
The case of Stoyel v. Cady, 4 Day 222., which has been cited, only proves that scire-facias will lie ; a point, in re- gard to which there is no controversy. In Denison v. Williams, 4 Conn. Rep. 402., it was determined, that debt on judgment is sustainable, without averring any special facts as a reason for bringing it. In the case of Williams v. Cable, 7 Conn. Rep. 119., although the point now under considera- tion did not necessarily arise, yet debt on judgment and scire-facias are there considered as concurrent remedies, in a case like the present. And in De Forest v. Strong, 8 Conn. Rep. 513., where this question was much discussed, the court decided, that where debt on judgment was brought, in the case of a mistaken levy on lands, and judgment suffered by default, the judgment was not void, and could not be collate- rally impeached, by a third person. Thus stand
the authorities, in Connecticut, which have a bearing on this question ; and although in none of them is the point directly decided, yet their leaning certainly is in favour of the doctrine, that where there is no real, but an apparent satisfaction of the execution, debt on judgment well lies. And it is believed that the uniform practice, through the state, has been in conformity to this principle. We see no reason for disturbing the practice; as to it, there appears to be no well- founded objection.
There isno satisfaction of the judgment entered upon the record ; and nothing, to take the case out of the general prin- ciple, that debt lies upon a judgment which is in full force, and unsatisfied. We are,
We are,therefore, of opinion, that the declaration is sufficient. 2. I
2. Inext proceed to consider the question arising upon Mercy Sawyer's deed. And I do so, in this place, because if the question be decided one way, it ends the case, and renders a consideration of the remaining question unnecessary; it being it being
But however this may be, we entertain no doubt of the effect of this deed under our own laws. This mode of conveyance is believed to be co-eval with our government. See Barrett v. French, 1 Conn. Rep. 354., and note. In that case, Swift, Ch. J., in giving the opinion of the court, says : “ This mode of conveyance has been practised in this state, beyond the period of memory; and no inconvenience has resulted from it. This constant and immemorial usage is sufficient to make it a part of our common law. And a deed of this description may be regarded as one of the assurances of real estates.”
We are prepared, then, to give effect to every part of this deed. And we hold that it conveyed the precise interest which it purported to convey-that is a fee to the grantees, subject to a life estate in the grantor.
Such being the effect of this deed, it is admitted, that Benjamin Sawyer, instead of one third, owned an undivided moiety of the premises, subject to a life estate of Mercy Sawyer, in an undivided third part of the whole. The facts, then, set up in the replication, are well found to be true ; and the only remaining enquiry is,
3. Whether, upon these facts, the plaintiff is entitled to judgment ? And this enquiry is resolvable into another, viz., was the levy well made ?
The officer, supposing that Benjamin Sawyer owned only
Now, had Benjamin Sawyer owned an undivided moiety of the premises, unincumbered, we are not prepared to say, that the levy would have been void: because an appraisal of an undivided third part, necessarily involves an appraisal of the whole, and of every integral part. And by varying the proportions, the levying creditor’s interest might have been accurately ascertained. But the difficulty is, the part taken, was not unincumbered. Mercy Sawyer had a life estate in one third part; and this incumbrance pervaded the whole. No portion of the premises could be levied on and set off, free from this incumbrance. The incumbrance has not been appraised ; and of course, there has been no appraisal of the debtor’s interest. The levy is, therefore, void. Starr v. Leavitt, 2 Conn. Rep. 243.
The judgment seems to proceed on the ground, that as Benjamin Sawyer owned an undivided third part, in one right, that might be taken and set off, without any reference to the interest which he acquired in another right. But this view of the case is manifestly incorrect, for the reason that has been already given. The whole interest of the debtor, should have been taken ; and it makes no difference, that his interest was acquired by different titles.
Upon the whole, we think, that upon the facts found, judgment should have been rendered for the plaintiff. The judgment of the superior court must, therefore, be reversed.
Concurrence Opinion
I concur in the opinion, that the deed from Mercy Sawyer was not void. That mode of conveyance has been sanctioned, by long usage, in this state. But aside from any such usage, I do not think, that upon the principles of the English common law, the deed would be inoperative. It purports to convey to the grantees, and their heirs and assigns forever, the grantor’s interest, with a reservation to the grant-
But the principal question is, whether the plaintiff’s execution has been legally levied, and his debt satisfied. If so, he cannot recover in his present suit. It appears from the plaintiff’s replication, that the execution was levied upon one undivided third part of a certain lot of land, owned by the defendant and others, as tenants in common ; and that such proportion of it, was set off in satisfaction of the execution as the debt and costs bore to the appraised value. It is not denied, that the defendant owned the part levied upon. Indeed, this fact is expressly admitted, by the plaintiff. But the claim is, that the defendant owned a greater interest, that is, “ one moiety” of the properly, “one third part of the whole estate being subject to an estate for life in Mercy Sawyer.” In other words, the defendant owned one third of the property, unincumbered, and one sixth part encumbered by Mercy Sawyer's life estate.
The unincumbered part was more than sufficient to satisfy the plaintiff’s demand. Had he not a right to levy upon that, and apply so much of it as was necessary to satisfy his debt ? I can see no sufficient reason why he might not do it. Had the defendant owned the whole estate in severally, subject to a life estate in a definite part, it is very clear, that the creditor would have been under no obligation to lake any part of that which was incumbered, provided the remainder was sufficient to satisfy his demand. The same principle, in my opinion, is applicable to the case under consideration.
In the case of Marcy v. Kinney, 9 Conn. Rep. 394. 400., the court say, that “ the proper way” to levy an execution, “is for the officer to levy upon what he supposes enough to satisfy the execution, the whole tract or less ; to get the opinion of the appraisers; then, if it is more than he needs, levy on so much as, in the opinion of the appraisers, will satisfy the execution ; make his return according to the last levy ; and let their certificate correspond with that return’” In the case cited, the court was speaking of the levy upon property owned in severalty ; but the same rule applies to a levy upon property owned by one tenant in common. There is no more necessity of
In the case under consideration, the officer levied upon one undivided third part, caused that to be appraised, and then set off such proportion of it as was necessary to satisfy the execution. A definite rule is given, by which the plaintiff’s interest in the whole tract may be ascertained. Suppose the plaintiff’s execution had amounted to just the value of one third part. Then the plaintiff would have owned the one third part unincumbered ; the defendant one sixth part, encumbered by Mercy Sawyer’s life estate ; and the heirs of James Sawyer, the remainder, subject to the remainder of the life estate. No difficulty could arise in the division of the property. But in the present case, the plaintiff’s interest is less than one third ; consequently, the defendant owns the remainder of it, also the one sixth part.
Had the plaintiff levied his execution in the manner claimed, that is, by taking an undivided portion of ail the defendant’s interest, the partition of the property would have been rendered more difficult and complicated. For, in that case, it would be necessary to set out the life estate of Mercy Sawyer, partly in the plaintiff’s share, as well as partly in the defendant’s ; whereas, according to the present levy, her interest in the part that originally belonged to the defendant, may be apart-ed to her in the share still belonging to the defendant.
From the best examination I have been able to give this case, I am satisfied, that the plaintiff’s execution was legally levied and satisfied ; and consequently, that there is no error in the judgment complained of.
Judgment reversed
