Thayer v. Mayo

34 Me. 139 | Me. | 1852

The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by

Rice, J.

This is an action of debt on judgment. The question presented for consideration, is whether that judgment has been satisfied by a levy, made Dec. 9, 1848.

Against the validity of that levy two objections are urged : First, that the description is uncertain and defective. Second, that the land taken exceeded in value the amount of the execution and fees. The land levied upon was held in common by the debtor with others. In such cases the statute, chap 94, $ 11, provides, that the whole estate must be described by the appraisers and the debtor’s share or part thereof, so held, be so stated by them; and the whole or such part of the deb tor’s, interest as may be necessary to satisfy the execution may be taken.

This provision requires, that the estate levied upon shall be so distinctly described that the parties may know, with certainty, what rights pass to the creditor. In this case the levy was made upon one twenty-first part of certain property described in the appraisers’ certificate, “ reserving and excepting such incumbrances and conveyances as may have been made prior to the levy.”

No reference is made to any particular conveyance or in-cumbrance. For aught that appears, the debtor’s whole interest may have been conveyed before the levy, or it may have been incumbered to the full extent of its value. The rights acquired by the levy, if any, are therefore in the highest degree indefinite and uncertain. Such a levy cannot be sustained.

The amount of property taken by the levy exceeds the amount of the execution and fees by the sum of fifty-two cents. This excess, the defendant contends, is so inconsiderable as to fall within the maxim de minimis non curat lex. Though it has not been decided what precise sum shall constitute the line of separation between cases falling within the application of that rule, from those which do not, it has been adjudged, that forty-one cents is too large a sum to be deemed trivial by the law. Boyden v. Moore, 5 Mon. 365. That case has been cited with approbation by this Court in Huse v. Merriam, 2 Greenl. 375, and Soper v. Veazie, 32 Maine, 119, and is deemed decisive of the case at bar. The statute referred to by counsel for defendant, forbidding the holding of Courts on the fourth of July, was approved Aug. 10, 1849, more than a year after judgment in the original action was rendered. The defendant according to agreement must be defaulted.