Mead v. Harvey

2 N.H. 495 | Superior Court of New Hampshire | 1822

Richardson, C. J.

It is contended on the part gf the tenants, that the extent,under which the demandants claim the land in question, is invalid, because it does not appear in the sheriff’s return at what sum the appraisers valued the land. In order to settle the question, which this exception presents, we must resort to our statutes. It is not to be doubted, that when an execution is extended upon land, the appraisers are faithfully and impartially to estimate the value of the land in money, and that it is to be applied according to that value to the satisfaction of the execution.— This is apparent from the enacted form of the execution itself. “We command you, therefore, that of the goods, chat- “ tels, or lands of the said D. H. you cause to be paid and “ satisfied unto the said R. Y. at the value thereof in money, “ the aforesaid sums,” &c.(l) When goods or chattels are taken to satisfy an execution, it is provided by statute, that they shall be sold, “ and the money arising upon such sale “ shall be applied to the paying of the charges, and to the “satisfying of the execution.”(2) The statute provides, “ that “ the manner of levying executions on real estate shall be as- “ follows: The creditor shall deliver his execution to the “ sheriff of the county, or his deputy, where the debtor’s « land and tenements lie, who shall cause three appraisers “ to be chosen, one by the creditor or creditors, another by “ the debtor or debtors, if he or they so please, and the “ third by the sheriff, which appraisers shall be reputable “freeholders and residents in said county. And in all cases “ where the debtor shall, on due notice, neglect or refuse to “ choose an appraiser, the officer shall appoint one for such “debtor or debtors, and the said appraisers, having taken “ their oaths before any justice of the, peace, far hfuüy and “ impartially to appraise such lands and tenements as shall “then and there be shown them, as the estate of such debt- “ or or debtors, shall appraise the same, to satisfy the execu- “ tion with the officer’s fees, and set off such lands and tene- “ ments by metes and bounds. And the sheriff shall thereupon deliver possession and seisin thereof to such creditor “ or creditors.”

Under this statute, it is the duty of the appraisers to set off the land by metes and bounds, and to estimate its value in money. The sheriff then delivers to the creditor seisin and possession of the land, and the execution thus becomes satisfied to the amount of the appraised Value of the land.

In the extent, under which the demandants claim the land, the appraisers say, “ we have faithfully and impartially ap- “ praised certain lands, &c. hereafter described, &c. which “ property we hereby set off to said P. C, to hold to him, “ &c. in full satisfaction of this execution, with officer’s fees “and incidental charges of levying the samé.” Now the objection to this extent is, that, although the appraisers may have faithfully and impartially appraised the land, yet for aught that appears, the appraised value may have been much above the amount of the execution and charges of extending it, and the question is, whether we are at liberty to presume that the appraisers estimated the land at the amount of the execution and charges? it may be probable, that they did so estimate the land, but in a case of this kind, are courts at liberty to say it was so done, becausp ¡1 is probable it was so done ? Land was not at the common law liable to execution.

But our statute has made every man’s estate both real and personal liable to the payment of his debts, and for that purpose he may be divested of his inheritance. It has however always been held, that in thus taking from an individual bis land, the statute must be substantially pursued. In the case of Sewall et a. vs. Wallace et a. in the county of Hills-borough, December term, 1315, the sheriff had returned in a certain extent, as follows, with regard to the choice of appraisers : “J. G. chosen by the plaintiff’s attorney, J. K. “ chosen by myself, and S. K. chosen by myself, the debtor “ neglecting to choose a mars.” It was objected, that it did not appear that notice was given to the debtor to choose an appraiser. To this it was answered, that the word “ neglect” imported notice, that in common parlance a man was never said to neglect what he had had no opportunity to do. But the court decided, that no title could be acquired by the extent, and a case was cited in which it had been before so decided. 2 Mass. Rep. 154, Eddy vs. Knap, S. P. -8 ditto 284, S. P.

a 9 Mass, ,ep. 242. (5) 14 Mass. ⅜ 20.

In the case of Davis vs. Maynard,(1) the sheriff, having sold a right in equity to redeem land upon execution, made return as follows : “ Worcester, ss — November 7, 1808. “ After advertising as the law directs, 1 this day sold at “ public auction,” &c. It was objected, that the return was insufficient, because it did not specify how the right had been advertised, and of that opinion were the court.

in the case of Williams vs. Amory,(2) it was held, where the sheriff had neglected in his return of an extent to state, that the appraisers were “ discreet and disinterested free- “ holders,” that the extent was void ; and the court lay it down as a rule of law, that “ a statute title must always be “ perfect, that is, every thing which the law deems essen- “ tial to the transfer of the property from one to another, “ must appear on record to have been done.”

Nor are the grounds upon which these decisions rest, at all unsatisfactory. When the lands of one individual are taken from him and transferred to another by the sheriff under the authority of a statute, it ought to appear by the sheriff’s return. that the statute has been pursued. Nothing ought to be left, to conjecture. Every fact essential to a good title ougbi to be expressly staled or necessarily implied in what is stated in the return. The Validity of an extent may then be easily determined by comparing the return of the sheriff with the requisitions of the statute. But a departure from this rule may eventually lead to great uncertainty in our land titles and to endless litigation.

In the present case, an essential fact is entirely omitted in the sheriff’s return. It is neither expressly staled, nor is it to be necessarily inferred from any thing that is stated, at what sum the appraisers estimated the value of the land. How can we then say, that in this case the land was applied, to the satisfaction of the execution, according to its valut? in money, as the law requires ? To pronounce this extent valid, (hen, is in fact saying, that a man may be deprived of his inheritance, under color of law, in a manner not warranted by the law of the land.

Verdict set aside, and demandants nonsuit.