15 N.H. 337 | Superior Court of New Hampshire | 1844
The counsel for the plaintiff has made an ingenious and sensible argument, for the purpose of proving that an extent ought not to be held good, although it is made to satisfy illegal fees taxed upon the execution, and yet considered void
It has been held that payment of interest upon a judgment cannot be coerced by an execution. Hodgdon vs. Hodgdon, 2 N. H. Rep. 171. It is an abuse of tbe process of tbe court to make use of tbe execution to enforce tbe payment of interest accruing since tbe'judgment. Kent, C. J., Watson vs. Fuller, 6 Johns. 284. In tbe case of Creuze vs. Hunter, 2 Ves. 162, Ld. Loughborough said: “ upon a judgment at law, no interest subsequent to tbe judgment can be recovered. You may bring a fresh action upon it, as a new cause of suit, but you cannot levy for it, nor charge tbe land under tbe elegit with the intermediate interest from the date of tbe judgment.”
Now it is unnecessary to determine whether tbe reasons given for the distinction made between tbe cases of illegal fees and of interest, be sound or not. It is well settled that property can be taken only to satisfy tbe amount of tbe execution and tbe legal fees thereon, and that tbe payment of interest upon a judgment cannot be coerced by an execution. This is conclusive. Tbe distinction is now well understood, and there is no reason that occurs to us why tbe decisions should be overruled, and our opinion, therefore, is, that tbe extent is invalid, because tbe land is ‘ taken to satisfy tbe interest.
The statute provides that the debtor may, within a year from the return day of the execution, pay or tender to the creditor the sum at which the lands have been valued. N. H. Laws 101, (Ed. of 1830.) As three fortieths of the tract were appraised at $118.23, three fortieths of half the tract, then, would be appraised at $59.12. Perhaps a tender of this sum, if there had been no defect in the proceedings, might have been sufficient, although three fortieths of the whole tract were set off. But still the whole title would be affected by the interest. The land is set off as well to satisfy the interest as the debt. The debtor could not redeem without tendering at least $59.12, and this sum is made up both of interest and of debt.
As to the right of the defendant to except to the proceedings under the levy, the case of Wellington vs. Gale, 13 Mass. 483, is in point. There, the tenant was a mere disseizor, but it was held, that as the title of the demandant wat wholly under the statute, if he did not prove his title he had no right to disturb the tenant in his possession.
It is unnecessary to examine the other questions presented by the case. Verdict set aside.