34 Vt. 474 | Vt. | 1861
This is an audita querela to vacate and set aside a levy of an execution in favor of the defendant, Hayward, against the plaintiff, Hopkins, levied on the real estate of the said Hopkins. The question is as to the sufficiency oí the declaration ; the county court having decided on general demurrer, that the declaration was insufficient.
The declaration alleges that Hopkins owned an undivided half of the premises, which undivided half the appraisers on the execution appraised at $1875, and that the officer eet off one undivided third of such undivided half, subject to a mortgage on this undivided half on which was then due $521,32, at the sum of $451,23, in part satisfaction of the execution, alleging that this appears by the' officer’s return. For aught that appears'from the declaration the levy upon the face of it was good. But one grievance complained of is, that after the premises were attached on the original writ in that suit, and before the levy of the execution, a house was built on the premises of the value of $2000, and which was on the premises at the time of the levy, and that the appraisers by direction of the execution creditor, did not appraise the house, or take it into consideration, but appraised the land only in their appraisal, and that by direction of the creditor they did not appraise a homestead in the premises, but deducted $500 from the value of the land for a homestead for the.execution debtor. The declaration further alleges that the
The question then is whether, audita querela is the appropriate remedy. It is insisted by the defendant’s counsel that as the rem- . edy by audita querela is a harsh remedy, it ought not to be extended beyond its legitimate and accustomed use, and that it is not the proper remedy for the grievance complained of in this case. We are not inclined to extend the writ of audita querela beyond its appropriate use, especially in arcase where there is another remedy equally beneficial to the party aggrieved and less onerous to the other party ; but we cannot in a case proper for its application according to settled principles of law, deny it. Audita
It is claimed by the defendant’s counsel that the plaintiff ought to be restricted to a suit against the officer for a false return. But in a ease where the debtor’s property has beeu illegally taken by setting off too great a portion of it to satisfy the execution, he ought not to be driven to that remedy, and to be compelled to take a compensation for his property. He is entitled to a specific remedy, by which he may have restored to him what has been thus illegally taken. Even if the creditor had no agency in procuring the false return, it is more reasonable that he should resort to the officer who acted under his employment, than that the debtor should be obliged to seek that remedy. In this case where the debtor directed the wrongful acts complained of, it certainly is not just to allow him to reap the fruits of his own wrong, and compel the debtor to seek his remedy on the officer who is no more in fault than the creditor, and who is ‘not benefited by the act. The debtor is clearly entitled to a remedy that will restore to him the estate itself, at least to the extent that it has been wrongfully taken, even if it vacates the whole levy as this remedy necessarily does. We see no reason to question the authority of Hurlbut v. Mayo, and that case must govern this.
Nor is this levy cured by the statute of 1837, incorporated into the Comp. Stat. p. 316, on the subject of defective levies, which has not escaped our attention although not referred to in argument. This statute, which was not in force at the time of the decision of Hurlbut v. Mayo, gives the supreme court, on petition of either party, power to vacate a levy which may be “irregular, informal or not made according to the strict rules of law, so that the title derived therefrom shall be doubtful,” if such petition shall be brought within two years from the lime
The two years had not expired in this case when the suit was commenced ; still if that statute applies to this case in all its provisions, it might have been a good answer to this action so far as it seeks to vacate the levy. That statute was intended to apply to formal defects, but not intended to cure by lapse of time a levy like this, defective in substance as to the subject matter of the levy, by which gross injustice is done by taking too much of the debtor’s land to satisfy the execution. The debtor in such case might have notice of the levy, good on the face of it, and yet be ignorant of the facts which constituted the error until after the expiration of the two years ; and we cannotbelieve it to have been the intention of the Legislature to deprive the debtor in a case like this of all remedy, if he omitted to bring his petition under that statute in two years after notice of the levy. This is substantially the construction the court adopted in Bell v. Roberts, 13 Vt. 582, although the court held that the defect in that case was of that formal character that came within the statute.
As to the other question, whether all the appraisers must agree in the appraisal, or whether the majority should govern, we express no opinion.
The judgment of the county court is reversed, and the defendant on motion has leave to replead on the usual terms of paying costs and taking none pending the demurrer, and the cause is j-emanded to the county court.