Mitchell v. Kirtland

| Conn. | Jul 15, 1828

Peters, J.

The acquisition of title by execution, is a proceeding in invitum. The requisites of its validity are prescribed by positive law. It is in derogation of the common law, and stricti juris. An omission, therefore, of a statute requisite, is fatal. Hobart v. Frisbie, 5 Conn. Rep. 592 Parker v. Rule’s lessee, 9 Cranch 64. “ It must not be forgotten,’’ says the Chief Justice, in Metcalf v. Gillet, 5 Conn. Rep. 400. 403. “that the only way in which title can be acquired to land, by the levy of an execution, is by an observance of all the requisites of positive law.”

The statute (p. 57.) provides, that real estate taken by execution, shall be appraised, by indifferent freeholders of the town where the lands lie ; and if not chosen and appointed by the parties, a justice of the peace of the same town, who by law may judge between them, shall appoint. Is a tenant of one of the parties an indifferent freeholder ? As a justice or juror, he could not judge between his landlord and another ; and it would be strange indeed, if a man could be an appraiser, who was not impartial enough to appoint one.

But, it is said, that the appraiser was agreed on and appointed by the parties, knowing his situation ; and consensus tollit errorem.

In Chapman v. Griffin, 1 Root 196. the plaintiff’s title was by the levy of an execution. All the appraisers were agreed upon, by the creditor and debtor. But one of them did not belong to the town where the land lay. But the court said : “ The statute is express, that the land shall be appraised, by freeholders of the same town; and the agreement of the parties cannot alter the law.” The authority of this case was recognized, by this Court, in Metcalf v. Gillet, 5 Conn. Rep. 400. 403.; and the Chief Justice, in expressing their opinion, said: “It was correctly adjudged ; and the determination was made on this invincible reason, that the statute is express.” The same opinion was expressed, by Lord Coke, more than two centuries ago : “ The agreement of the parties cannot make that good, which the law maketh void.” Co. Litt. 51. b.

The legislature, in directing that the appraisers should be indifferent, must have intended, that there should not be such a relation between them and the parties, as could bias their minds, and induce them to act with partiality. As the degree of relationship is not designated, it is reasonable to adopt the rule prescribed by statute, (p. 148.) as to the cases in which judges are disqualified to judge between the parties. As this comprehends the relationship of the appraiser in question, I think the execution not duly levied ; and that the decision at the circuit was correct. Vid. Fox v. Hills, 1 Conn. Rep. 295.

Lanman and Daggett, Js., were of the same opinion. Hosmer, Ch. J., being related to one of the parties in interest, gave no opinion. Brain ard, J. was absent.

New trial not to be granted.