Howard v. Daniels, 2 N.H. 137

2 N.H. 137 | Superior Court of New Hampshire | 1819

Woodbury, J.,

delivered the opinion of the court.

The first objection to the recovery of the demandant is, that the description of the land in the return of the writ against Lewis was so general, no lien upon the land was acquired under the attachment. This objection, if well grounded. is fatal to the present action. Because, in that event, the demandant would acquire only the title Lewis owned at the date ol the levy, in November, 1812; and as he then owned only the equity of redemption, the demandant,-though the mortgage had not since been foreclosed by the tenant, would be unable to sustain against him a writ of entry without proving a previous tender or payment of the mortgage money.(l)

(1) 1 N H. Brown et al. vs. Cram-392 Swett vs. Horn.

. > _ But we are inclined to think, that the description of the land in the return of this writ was sufficient to answer the purpose intended by an attachment.

The object of an attachment is not, as in case of extents, to pass the title ; in which last case both our statute, and the common law seem to require a description by “ metes and £i bounds.” 1 N. H. Laws 182.—4 Inst. 318.— 2 Tidd. 940.—Doug. 475, Den vs. Abingdon.—1 Barn. & Ald. 40.— 11 John. 365.—13 ditto 97, 537.-9 Mass. Rep. 92.— 11 ditto 515.

But it is merely to caution the public and the debtor, that the land attached is intended to be considered by the credit- or as eventual security for his debt. A description of it, therefore, as “ the farm the defendant now lives on, with his tannery, &c. thereon,” could not fail to apprise the defendant and all others in interest what premises were intended. Our statute concerning attachments does not, like that concerning extents, require the “ metes and bounds” of the land to be set out ; and in deeds, where the title itself passes, the same certainty contained in this return suffices ; for there the rule always is id cerium est, quod cerium reddipotest. Com. Di." Grant” E. 13.—Bac, Ab. “Grant” H.— 5 East 51.—7 John. 217.—11 John, 365, Jackson vs. Delancy.— 4 Mass. Rep. 205.—10 Mass. Rep. 19, 20.

The next objection relates to the validity of the extent.

The only supposed defect, apparent upon its face, is, that the oath to the appraisers was not administered till more than thirty days after judgment against the debtor; and, therefore, that the attachment was dissolved. But the return is dated within the thirty days; the extent is alleged to have been at that time commenced, and hence all the subsequent proceedings operate back to that date. 1 Barn. & Ald. 230, Stevens vs. Donstan.—13 John. 251, Wylie vs. Hyde,—9 John. 117.—2 Binney 80.—6 Mass. Rep. 20.—9 Mass. Rep. 393.

(1) I N. H. Rep. 372, Sullivan vs. M’Kean. (2) 11 Mass. Rep. ,468. (3) 9 Mass. Rep. 270.— 1 N. H. Laws 182. ;4) 1 N. H. Laws 182.

The evidence offered fo impeach the extent for defects not apparent on its face was rejected for the following reasons.

Extents, when returned, become records ;(1) and they are not to be impeached by parol evidence, by a party, except in a scire facias for a new' execution under our statute, or in an action against the sheriff for falsehood in his return ;(2) and by third persons, only when they have been defrauded by the extent,(3) or, claim title to the premises not under either party to the extent. 1 Burr. 34.—9 Mass. Rep. 99, Bott vs. Burrell.—14 Mass. Rep. 29.

^ As this tenant claimed title under one of the parties to the extent, the evidence was in no view admissible, unless, under all the circumstances, it was competent to prove a design in those parties, by means of the extent, to defraud the creditors of Lewis.

The tenant was among the number of those creditors, and insists, that the mode of appraising the land and the increased value of the land over the debt were pertinent testimony to show such a fraudulent intent.

But the mode of appraising the land was only an informality, and was perfectly natural, when it is recollected, that the claim was large, and the appraisers, who were first chosen, disagreed in opinion about the value. Such informality, therefore, was' not in itself competent to prove fraud.

The other evidence concerning the consideration would have been relevant,had the difference between the debt and the value of the land been greater. Our statute of February 15th, 1791, does not in terms avoid conveyances in behalf of creditors, if “ made for good and valuable consideration, “ truly paid or secured to be paid.”{4) And it is well known, that the goodness and value of a consideration depends in law upon its quality and not its quantity. 1 Pow. Con. 361.—2 Bl. Co. 297, 444.—1 Com. Con. 8.

But under the 13th of Elizabeth courts have very properly held, that when the consideration agreed upon was greatly inadequate to the value of the property, this circumstance raises a suspicion, that the consideration has not been paid or secured as a permanent transaction, but only as a temporary expedient or finesse to deceive creditors.

(1) Justin Inst. b 1, t. 6, John 493, 498.-466.

The cases reported of such inadequacy are where £200 have been agreed upon, when the estáte was worth £2000; or only £.¾00 agreed upon when the estate was worth that per annum. Cowp. 706.-Cr. El. 445.-8 D. & E. 529, Nunn vs. Witsmore.— Rob. Fr. Con. 14, Preface,.

But here the estimate varied from the supposed true value only five or seven hundred dollars, in an estate worth over four thousand dollars. It is.well known, also, to every person acquainted with the prices of real property in this section of the country, that they are very fluctuating, and that this circumstance would be likely to strike the parties more sensibly in a period of war, such as existed at the time of this extent. Different persons, when called as witnesses, constantly7 differ among themselves more than the proportion of this inadequacy, in their estimate of buildings and cultivated land. Their estimate of the risk of dower alone in the premises would be likely to differ more than quadruple the proportion of this inadequacy, which is about one-seventh of the whole consideration.

The demandant, too, was a merchant, residing at a distance, to whom the land would appear less valuable than it would to farmers in the neighborhood. It would be destructive of half our conveyances if, after a lapse of seven years, it was competent to avoid them by evidence of the naked fact, that the consideration paid may have been one seventh too low. For instance, that only six dollars were paid, when the true value was perhaps seven dollars.

Indeed, there was not only an absence of the other circumstances usually attendant on fraudulent transactions, such as relationship and confidence between the parties, for the bad intent must exist in both ;(1) but there was, in the very nature of the conveyance, what tends to rebut every presumption of fraud. The tenant had the power to redeem the land, if estimated too low, and thus defeat any covenous attempt; and the extent having been public and recorded, it is highly probable, if the estimate was in truth too low, that the tenant, or some other creditor of Lewis, would actually have redeemed the land, and thus availed himself of any difference between its value and the debt of the demandant.

Judgment on the verdict.