Hovey v. Blanchard

13 N.H. 145 | Superior Court of New Hampshire | 1842

Parker, C. J.

The relation of landlord and tenant never existed between these parties. Levi H. Morgan was formerly the owner of the premises. The plaintiff endeavors to make his title under an attachment, and a levy of the execution upon the land, as the property of Morgan. The defendant is in possession as lessee of Bartlett and Prescott, who claim under a deed from Morgan, executed prior to the attachment, but not recorded until a subsequent day. The title set up by the plaintiff is, therefore, adverse to that under which the defendant holds, and the latter might have defeated the process upon that ground, never having admitted the plaintiff’s title. Leavitt vs. Wallace, (12 N. H. Rep. 490.)

But the pleadings raise a different question. The defendant avers, in his plea, that Bartlett and Prescott have title, and that he holds as their tenant. The plaintiff replies with a formal traverse of the whole matter. Whether this might not have been objected to, on special demurrer, we need not enquire. The defendant reaffirms the matter of the plea, and tenders an issue upon the whole, which is joined. And the question is, whether the defendant maintains his allegations.

Unless the plaintiff is chargeable with notice of the deed before the attachment was made, the attachment and levy give him the better title.

It appeared in evidence that Morgan himself caused the attachment to be made. He came there with the letter which inclosed the demand. He was in that the agent of the plaintiff, and there is evidence from which a jury might well infer that ho was to give particular directions respecting the mode of service. The letter contained none; and when it was found that the attorney to whom it was directed was absent, he desired Quimby to open it, requested him to make a writ, and ordered the attachment. The plaintiff subsequently paid the expenses of the levy, and claims under the attachment; and if it might be supposed that he was in fact a creditor of Morgan, and had sent the demand in good faith to the attorney, for collection, without giving Morgan any other authority than that of carrying the letter ; still Morgan must be regarded as his agent in procuring the writ, and making the attachment, because the plaintiff by pursuing the suit to a judgment and levy, and by claiming under the attachment, has adopted the act of Morgan as his own. If he adopt the act of Morgan he must take it cum onere ; and it is immaterial whether Morgan had a previous authority to direct the attachment. The plaintiff must be chargeable, therefore, with notice of the conveyance which had been made by Morgan the day previous, Morgan having full knowledge of the execution and contents of that conveyance. The subject matter of the agency, in making the attachment, had a direct connection with, and bearing upon, the conveyance which had been previously executed, and Morgan must not only be presumed to recollect, but he could not have forgotten, the execution of that conveyance. The case is, therefore, within the rule charging the principal, constructively, with notice of facts which were, at the time of the act done by the agent, within the knowledge and memory of the agent. 2 Livermore on Agency 236, 237; 2 Vernon 609, Jennings vs. Moore; 13 Ves. 120, Hiern vs. Mill; Story on Agency 131.

And this is a very appropriate case for the application of the rule ; for it presents a most palpable attempt at fraud on the part of Morgan, with circumstances tending somewhat strongly to show collusion on the part of the plaintiff.

The plaintiff’s title might perhaps be questioned upon another ground. The statute of June 29, 1829, enacts that “ if any sheriff, or deputy sheriff, shall make any process, ■writ, declaration or plea, for any other person, the same shall be void.” The writ upon which the premises were attached was made by a deputy sheriff, in direct violation of this provision of the statute ; and, had an objection been made before judgment, the action must have failed for that cause. Whether it can be regarded as rendering the judgment, and the levy under it, as also absolutely void, may admit of more doubt, and need not be settled. We advert to the matter at this time, for the purpose of censuring this disregard of the statute by deputy sheriffs, of which it is to be feared this is not a solitary instance. It is not necessary to enter into an exposition of the reasons which induced the legislature to enact the law : and we need only say that no attorney should enter a writ which he knows has been made by a deputy sheriff, in violation of the statute.

Judgment on the verdict.