Putnam v. Westcott, 19 Johns. 73

Putnam v. Westcott

19 Johns. 73 | N.Y. Sup. Ct. | 1821

Spencer, Ch. J.

delivered the opinion of the Court. The first question to be considered is, whether an execution issued under the act for the recovery of debts to the value of twenty-five dollars, can be levied on a leasehold for years ? It was decided by this Court, in the case of Vredenbergh v. Morris, (1 Johns. Cases, 223.) that the act relative to the docketting of judgments, did not extend to, or bind a term for years; and, accordingly, it was held that the sheriff was justified in returning nulla bona upon an execution issued upon ajudgment obtained before the discharge of the defendant under the insolvent act, and before his assignment, but which execution was put into the sheriff’s hands subsequent to the assignment; there being no other property whereon to levy, but a term of years, which was held not to be bound by the docketting of the judgment. It is insisted, that if a term for years is not bound by the statute relative to docketting judgments, which provides that no judgments shall affect any lands or tenements as to purchasers or mortgagees, but from the time of filing the roll and docketting the *76same, it must be because a lease for years is a chattel inte» rest; and so may be taken and sold under a Justice’s execution. The statute (1 N. R. L. 393.) provides, that whenever judgment shall be given by a Justice of the Peace, an execution shall be granted thereupon, commanding a constable to levy the debt, damages, and costs, of the goods and chattels of the person against whom such execution shall be granted. The real question then is, in what sense the legislature used "the words goods and chattels ? Whether they mean chattels personal only, or chattels generally, including both real and personal ? The law fully recognizes the distinction between chattels personal and real. The former division includes moveable things only, as belonging immediately to the person ; • chattels real are, such as concern and savour only of the realty, as terms for years, Sic. and are immoveable. Such interests are chattels real, because of their immobility# and because they have not a sufficient legal and indeterminate duration. I am of opinion that the legislature used the expression “ goods and chattels,” as regards Justice’s executions, in reference to goods and chattels personal. The ' 12th section of the act (1 N. R. L. 394.) provides, that the constable, after taking such goods and chattels into his custody, by virtue of such execution, shall advertise, in the manner therein required, in the town where such goods and éhattels shall betaken. Again, in the 15th section, which prescribes the duty of the constable on attachment, he is required to attach, take, and safely keep the goods and chattels of the person against whom the same may be issued ; with a proviso, that he shall not remove or convey away any such propérty, if, &c. These provisions obviously show, that the. term “ goods and chattels” in this statute means personal and moveable goods, such as might be taken into custody, and not such as are immoveable and partake of the freehold. The usage and practice under the act is to be regarded ; for the juset norma loquendiis established by usage. Where the words of a statute are dubious, long usage is a just means of exposition. The meaning of things spoken or written, must be as it has constantly been received to be, by common acceptation. (19 Viner, 520. pl. 92.) This is believed to be the first instance in which it has been pre*77tended, that a Justice’s execution could be levied on a leasehold interest for years. The authority to levy such executions on goods and chattels, has existed from the first formation of the government. It cannot then be doubted that the constable had no right to sell a lease for years ; and consequently he has received the plaintiff’s money without any authority, and the sale made was a nullity. It would seem that both parties were under a mutual error. The defendant supposed he had a right to sell FrinhPs interest in the land; and the plaintiff, by becoming the purchaser, must have thought the defendant had such authority.If, under this mistake, common to both parties, the defendant had paid over the money to the plaintiffin the execution,before the mistake was discovered, I should more than doubt the plaintiff’s right to recover. The plaintiff’s equity to recover, would then he opposed by the injustice of requiring the defendant to refund. In such a case, I should not consider the plaintiff as entitled to recover ex equo et bono. But it was not offered to be proved, that the defendant had parted with the money; therefore taking all that was offered to be proved as true, still the plaintiff is entitled to recover, as he has paid his money to the defendant, who, for aught that appears, still retains it, without right, and without any consideration.

Motion denied.