French v. Eaton

15 N.H. 337 | Superior Court of New Hampshire | 1844

Gilchrist, J.

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 because tbe land is sét off for tbe purpose of paying interest upon tbe judgment. It is said that in either case tbe land is taken to satisfy a claim exceeding tbe amount of tbe judgment and thg fees upon tbe levy of tbe execution. Tbe reason why an extent is not held to be void, where tbe sheriff taxes illegal fees, is given in Burnham vs. Aiken, 6 N. H. Rep. 323. It is there said, that for tbe offence of taking any greater fee than is allowed by tbe statute, tbe sheriff forfeits tbe sum of $30.00 ; that after tbe debtor has redeemed tbe land be may maintain assumpsit against tbe sheriff, to recover any excess be may have paid beyond tbe legal fees, and that therefore it does not seem to be necessary to bold tbe extent void, and leave tbe innocent creditor to seek bis remedy by an action against tbe officer. In Odiorne vs. Mason, 9 N. H. Rep. 30, it was held that illegal fees do not in any case render an extent void. It was said that they bad been so common, that bolding extents void for that reason would render titles depending on them very uncertain.

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.

It appears, from an examination of the extent in this case, that the amount of the debt, cost and interest was $243.23. The extent was made upon one tract of laud by metes and bounds, and upon three fortieths of another tract. It is understood that the debtor did not own the first tract, and that he owned only three fortieths of half of the other tract, instead of three fortieths of the whole. The first tract was appraised at the sum of $125.00, and three fortieths of the other tract were appraised at the sum of $118.23, malting the sum of $243.23, in the whole. Now it is contended, that inasmuch as the debtor did not own the whole of the land levied upon, which was appraised at exactly the amount of the debt, cost and interest, the plaintiff has not received any part of the interest, and so the levy is not void. If he had owned all the land, so that the execution was wholly satisfied, it is admitted that the fact that the interest was included might vitiate the proceedings, or that at least a question might be raised. But now it is said the plaintiff has not received even his debt, much less has he received any 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.