Pratt v. Jones

22 Vt. 341 | Vt. | 1850

The opinion of the court was delivered by

Redfield, J.

There are some questions, in regard to the form of the issue, and the sufficiency of proof, to show that the mortgage was a subsisting security at the date of the levy, which we shall not stop to discuss at length. It seems to me, that the issue does not in fact involve any inquiry as to the validity of the levy, but only whether the execution appeared of record to be satisfied, or, in other words, was satisfied of record. If the plaintiff wished to show, by matter dehors the record, that the execution was not in fact satisfied, and if such a showing could avail the plaintiff, in this form of action, it should, I think, be distinctly so pleaded. A stranger to these pleadings would not understand the plaintiff to claim, that the levy made was invalid, by reason of the debtor having only a mortgage interest in the land, but would conclude, that the plaintiff would undertake to show, that no levy whatsoever was made. This form of pleading would doubtless be well enough, where the defect was apparent upon the levy itself. And in süch a case the action of debt is manifestly the appropriate remedy, and this the proper form of pleading. And the fact, that the plaintiff’s counsel so felt the incongruity of the thing, as to decline the attempt to amend the record, by alleging matter in pais, dehors th© record, shows a lurking consciousness, that the case required a departure from the usual course ; and hence this form of pleading might have been adhered to, in order to escape the consequences of encountering a demurrer.

The same remarks, substantially, apply to the matter of proof offered in the county court.- There was no positive proof, whatever, that the mortgage remained a subsisting security upon the land. And as the date of the mortgage was more than fifteen years prior to the levy, and almost twenty five years prior to the time of trial, the natural and legal presumptions would concur in its being paid off.

But in regard to the question, involved in the very foundation of this action, and which has been chiefly discussed at the bar, whether an action of debt will lie upon a judgment,- which appears of record to be satisfied by levy of execution upon real- estate, regular upon the face of it, we have given to it all the consideration, which the time would allow, and we' entertain ’no doubt, that the case, upon that point, is clearly with the defendant.

This is a question, which attracted the attention of the profession, and came to be considered by the courts, at a very early day; and the traditionary bearing has certainly been altogether adverse to any such remedy. The subject certainly came before this court, as early as the case of Baxter v. Tucker, 1 D. Ch. 353, and was somewhat extensively examined and discussed by one of the ablest courts, who have ever occupied these seats, — and to say this is not to disparage others. That was scire facias to obtain a new execution, where the former one had been levied upon-an estate, not belonging to the debtor, which remedy is given by our statute. Ch. J. Chipman, in giving judgment, says, — “ The plaintiff could not have the common law remedy either of debt, or scire facias. By the return of the execution the judgment appears on record to be satisfied. To a plea of this in bar, the plaintiff could in such case make no sufficient replication ; so that he was at common law without a remedy.” “ This remedy is given by the statute.” This determination certainly covers the present case in all its parts. For the only defect in the present case, complained of, is, that the debtor did not own the estate levied upon, but a lesser estate. And this decision being made almost forty years ago, and having been fully acquiesced in by all, and our legislation conformed to it, by giving the creditor a remedy to obtain a new execution by petition to this court, we should, at this late day, feel reluctant to depart from it, if there were serious doubt of its soundness upon common law principles, which we think there is not. This case decides, too, that it is incumbent upon the creditor, seeking a new execution upon the ground of defect of title in the debtor to the estate levied upon, to show by positive evidence, prima facie, that such defect existed, and that he cannot for this purpose call upon the debtor to show his title affirmatively. This will apply to the matter of proof, in the present case, after a presumption against the continuance of the mortgage is raised, by lapse of time. The same view of the law upon 1 his subject was taken by this court, in Royce v. Strong, 11 Vt. 248, and in Hyde v. Taylor, 19 Vt. 599. And in Dimick v. Brooks, 21 Vt. 569, it was attempted to be shown, that debt upon record cannot be aided by averment of matter in pais, dehors the record. To what is there said I could add nothing here.

We think, then, in conclusion, that the record, and the record only, must be held conclusive, until, by some proceeding brought to operate directly upon the record itself, the levy is avoided. This was done, in Hurlbut v. Mayo, 1 D. Ch. 387, by audita querela, and may now always be done by petition to this court, under the statute. The case of Lawrence v. Pond, 17 Mass. 433, conforms to the view here taken.

Judgment reversed, and judgment for defendant, upon the issue joined, and the facts found by the county court, unless the plaintiff elect to become nonsuit.