37 N.H. 369 | N.H. | 1858
The parties in this case are respectively judgment creditors of Beza Latham, and they claim to hold the same land of their debtor by virtue of the extent of their several executions upon it.
The defendants’ extent has priority in point of time — the
Several exceptions have been taken to each. It is proposed to consider those which have been urged against the defendants.
In the description of the three parcels embraced in the .defendants’ levy, the number of acres in each is stated, and from the whole area is deducted the quantity of land covered by highways. It is objected that this deduction vitiates the levy. The ground taken is that by it the appraisers intended to make a reservation of the land covered by the highways; that this land was not appraised, and that this reservation, being void for uncertainty, it thus results that the land covered by the highways, being within the limits described, passes by the extent if held to" be valid, and nothing is allowed to the debtor for this land towards the satisfaction of the judgment.
This objection is founded upon a misconception of the object and effect of the deduction. It is not a reservation of the land, but merely a statement of the fact that the premises are encumbered with public easements consisting of the highways upon them, and of the deduction proper to be made in setting forth the number of acres which they contain, available for useful purposes. The quantity of land need not have been'stated; but, if stated, there is no objection to setting it out in this mode ; by deducting the quantity occupied, by the highways from the whole number of acres included in the premises described.
It appears from the case that there is a highway upon one of the parcels, and it does not appear that there are
Another, and the principal objection to this levy is, that it is made subject to the homestead exemption, — the certificate of the appraisers setting forth that the three tracts are “ of the value of $13,690, and no more, subject to the widow’s dower and the homestead exemption.” It is objected that the levy is void because neither the debtor nor his wife, though occupying the premises as their family home at the time of the levy, made application to the officer levying the execution to set off the statute homestead, and therefore no homestead exemption existed to which the extent could be subject. The argument is, that the statute of July 4, 1851, commonly called the homestead exemption act, makes no provision for deducting the value of the debtor’s statute homestead from the appraised value of the entire estate upon the levy of an execution upon it; but gives a remedy only by way of setting off the homestead on application of the debtor or his wife; that the exemption is a new right given by statute; that a way for enforcing it is therein provided, and that this statute mode is to be followed, to the exclusion of all others. The result of this view is, that the statute gives the homestead exemption, as a right in the debtor, only in cases where an execution is about to be levied on the estate of the head of a family, occupied as his family home, and he and his wife make application to the officer levying to have the homestead set off in the manner provided in the act. Upon
Nor can it be conceived that it was the purpose of the legislature in the enactment to give the statute homestead to the widows and minor children of execution debtors, merely because the husband and father, in his life-time, had — fortunately for them —been an execution debtor,
It is a general rule of law that when a statute confers a new right, and prescribes the mode of enforcing it, the statute remedy is to be pursued to the exclusion of all others. But the rule is not of universal application. It applies only where the remedy given is coextensive with the right, and where, from the character and provisions of the act, and the nature of the right and remedy, it is to be understood that the remedy was designed to be exclusive. The rule consequently is to be taken subject to various qualifications and exceptions.
In penal statutes, which are to be construed strictly, and which are not to be extended in their scope and operation beyond what is expressed, the right conferx-ed growing out of a new prohibition of the statute, or arising upon a new offence created by it, is to be enforced only in the mode which the statute prescribes. Several of the cases cited in the argument by the plaintiff’s counsel are of this character. Such are Castle’s Case, Cro. Jam. 644, in which it
The decision in Almy v. Harris, 5 Johns. 175, is to be referred to the same principle. There Harris, being licensed to keep a ferry under a statute which punished the keeping a ferry without a license, brought his action on the case against Almy for interfering with his ferry; and it was decided that the only remedy for such interference was by enforcing the penalty. These, and numerous analogous cases in which the general doctrine is asserted, are cases in which the new right grows out of a penal statute, and the rule which governs in the construe
So, too, where a statute confers a new power, the exercise of which, but for the statute, would be a violation of private rights, and at the same time provides the means of executing the power, and a remedy for the interference with pi’ivate rights in its execution, those who claim the power can exercise it in no other way, and those who seek a remedy for its rightful execution to their damage, can have no other redress than such as is prescribed by the statute.
Several of the other cases cited by the plaintiff’s counsel fall into this class. Such is Gedney v. Tewksbury, 8 Mass. 807, which was debt to recover the damages awarded to the plaintiff for land taken for a highway. The statute provided that the Court of Sessions should order payment of the damages out of the town treasury; and, in default of payment within a reasonable time, might levy the amount by warrant of distress upon the property of the inhabitants. It was held that the statute remedy must be followed. So, too, in Boston v. Shaw, 1 Met. 130, the same principle was applied. That was assumpsit, to recover the amount of assessments made against the defendant under an ordinance of the city of Boston for contribution toward the expense of a common sewer with which the defendant’s drain connected. The ordinance authorized the assessment of a tax against the individuals whose drains connected with the sewer, for the collection of their proportionate shares of the expense, and provided for the collection of the tax in the ordinary way; and it was held that this was the only mode of enforcing its payment. Of the same character is the power conferred upon corporate bodies by their acts of incorporation, to assess the shares of the members, and to enforce the assessment in a specific manner. Turnpike v. Gould, 6 Mass. 44; Turnpike v.
The ground upon which that case was held to be an exception to the general doctrine, equally exists in this. The remedy given by the statute of a set-off of the homestead by appraisers appointed on application to the ofiicer levying the execution, is intended for the benefit of the debtor, that he may have a more convenient and expeditious method for having his homestead interest assigned to him in severalty, when the estate in which his homestead right
But upon another view, a homestead exemption existed in this case to which the levy could be made subject, even if the statute provision is to be considered as restrictive, and excluding other remedies; for it can be held to be thus exclusive only in the particular ease for which the statute remedy is given; that is, for setting off the debtor’s homestead as an estate or interest to be held in his right, when an execution is levied. The right to be so set off is his homestead, to be exempted from attachment and levy, or sale on execution against him, the head of the family, as the judgment debtor; and if set off on the application of the wife, it is to be for his and her benefit in his right, and during his life. At his death the statute gives the homestead, whether so set off or not, to her, and to the minor children in her and their own right; and to these rights of theirs, accruing at his death, the statute remedy does not extend. It is limited to the setting off of his homestead as an estate or interest, to be held in his right during his life. That the statute gives such right to the wife, as a contingent inchoate interest during the life of the husband, without an assignment to him in the statute mode, was one of the points held in Norris v. Moulton. The statute remedy, then, is not coextensive with the rights which it creates. In such case the construction of the provisions conferring the right is not necessarily to be narrowed down to the ease for which the remedy is provided. In a case of doubt as to the intention of the act in reference to the extent of the right which it creates, a consideration of the nature and extent of the remedy provided may aid in giving the proper construction to the statute, as to its meaning in reference to the extent of the right. But where, as in this case, from the whole drift and policy of the enactment, independent of the provision
An argument against this position is drawn from the difficulty which must necessarily arise in estimating the value' of the wife’s inchoate interest, in making the deduction, as depending upon too many contingencies, and being too uncertain to admit of a just calculation of the amount of the incumbrance. But this difficulty is no greater in estimating the amount of the-incumbrance from her homestead right, than from her inchoate right of dower. They depend upon the same contingencies, and are incumbrances of the same nature, constituting a “ weight” upon the land, which lessens its value, and consequently proper to be made the ground for an abatement of the price at which it is to be taken by the creditor. That the possibility of dower is an incumbrance, lien, or weight upon the land, affecting its value, is clear. Whether it is such an incumbrance as to constitute a breach of the covenant against incumbrances in a conveyance of the land, has been doubted. Powell v. Morrison & Brimfield Co., 3 Mason 355; Fuller v. Wright, 18 Pick. 405; Marsion v. Hobbs, 2 Mass. 433 ; Nyces’ Ex’rs v. Obertz, 17 Ohio 71.
Again, it is said that in the ease of several levies upon different parts of the same premises, constituting the debtor’s family home, and of such value that his limited statute homestead may be taken from either j>art, it cannot be known at the time of the levies from which part the statute homestead will ultimately be taken. The deduction of the full value of the homestead must consequently be made in the case of each levy. The same embarrassment exists in the case of several levies upon different parts of premises which are subject to the inchoate right of dower. In both cases the appraisers are to make such abatement as the exercise of sound judgment requires, in view of all the circumstances, including that of the greater or less degree of probability that the dower in the one case, and the homestead in the other, will be assigned in whole or in part out of the particular estate upon which levy is made.
It is further objected, that, by the deduction of the value of the homestead right, that amount of the property of the debtor is placed beyond the reach of those creditors specified in section five of the homestead act, whosp claims, by the express provisions of that section, are excepted from the operation of the exemption, and that the exception to this extent is thereby nullified. The objection is urged as an argument against the construction given to the statute,
In every aspect in which the question has been presented by the able arguments of the counsel, we think a homestead exemption existed, to which the levy was properly made subject. The further questions then arise, whether the inquiry is open to parol evidence that the appraisers made too high an estimate of the value of the homestead right, and if so, whether such over estimate avoids the levy.
In Howard v. Daniels, 2 N. H. 137, the demandant claimed under the extent of an execution against the grantor of the tenant, and evidence was offered to show that the land set off was worth from five to seven hundred dollars more than the amount of the judgment. The evidence was insufficient to show fraud in the levy, and it was decided that it was inadmissible to impeach the extent on any other ground. It is there said that extents become records when returned, and they cannot be impeached by parol evidence offered by one who is a party to them, or who claims under a party to them, unless offered in a scire facias for a new execution under the statute, or in a suit against the officer for a false return. The title to real estate under an extent is a title by record. As such, it is to be acquired and proved by the record alone. Sullivan v. McKeen, 1 N. H. 371; Whiting v. Bradley, 2 N. H. 83; Fulwood's Case, 4 Co. 67, a; Hoe’s Case, 5 Co. 90; Gooch & al. v. Atkins, 14 Mass. 378. The return
But if the question were open to parol upon the law as held in this State, their over-estimate of the value of the homestead right, and their consequent deduction of too large a sum from their estimated value of the estate, free from the homestead, would not vitiate the levy. The effect of this over-estimate is to set off the land at a
This case, then, upon a view of the precise points of the decision, has no application to the question here. The reasoning of the court, however, in this as well as in the cases of Root & als. v. Colton, 1 Met. 347; in Whitehead v. Mallory, 4 Cush. 138, and in Barnard v. Fisher, 7 Mass. 71, would seem to sustain the general doctrine, independent of the statute, that an over-estimate of an incumbrance, and the consequent deduction of too large a sum on account of it, will vitiate the levy. All the cases in which this reasoning is applied are widely distinguishable from this. Thus in Barnard v. Fisher, the deduction was made on account of a prior attachment in a suit pending. It was held that this was no incumbrance for which a deduction should be made. The court say: “ amidst all the uncertainties,” as to whether such lien by attachment would ever become a title by extent, “ to value an attachment in an undetermined suit as an incumbrance upon the land, would be palpably absurd.” In Root & als. v. Colton
And in that case the levy was sustained, although proof was offered tending to show that the appraisers had made an under-valuation of from $500 to $700 in an estate worth about $4,000.
In Horn v. Swett, 2 N. H. 301, the appraisers by mistake over-estimated the amount due upon a mortgage incumbrance, and it was decided that this was not sufficient ground to avoid the levy. The court say, “if the land was actually worth more in money than the sum at which it was estimated, the debtor should have availed himself of the privilege which the statute gives him to redeem it, and if unable to do that he should have sold
In a case of this character, where the error of the appraisers consists in deducting too large a sum from the estimated value of the estate on account of the incumbrance, the debtor is relieved from all wrong by redeeming. In order to redeem he is required to pay only the sum at which the land was appraised, and interest upon it. He regains his land by the payment of a sum less than its value, upon the assumption that the error in the appraisal exists; and in making the payment to redeem he does nothing more than to fulfill to that extent the legal and moral obligation by which he is bound to the creditor to pay in money. This remedy is all which his protection requires. Nothing in the relation which he sustains as a delinquent debtor requires that he should have a better than this at the expense of his creditor.
The error of the appraisers, if proved, would not invalidate the levy. Upon all the grounds of exception taken to the defendants’ levy, it must be sustained, and they are
Judgment rendered thereon.