Tufts v. Hayes

| Superior Court of New Hampshire | Jul 15, 1855

Woods, C. J.

The question in this ease is as to the construction of the bond in suit. What are its true meaning and import, and what obligation did the defendants take upon themselves, by entering into it? What was its object, and what was it designed to accomplish?

The plaintiffs had purchased a farm of Hayes, one of the defendants, which was, at the time of the purchase, subject to a mortgage to some one, and to an attachment at the suit of Herring. The plaintiffs, then, had an interest in obtaining a discharge of the mortgage, as well as of the lien upon the land created by the attachment.

The condition of the bond was, that the defendants should save the plaintiffs “harmless from the attachment,” and should well and truly pay the demand on which the writ of attachment was founded, or fully and forever discharge said attachment, so that neither said Tufts nor said Foss “ should ever suffer any loss, costs or expense by reason of said attachment.”

Now, it is not pretended that the plaintiffs have ever been evicted or turned out of the premises, nor is there any fair pretence that any one, by reason of the attachment, has acquired any interest therein as against the plaintiffs. The attachment was a general attachment of the premises, which gave a perfect lien upon the estate, and a right in the creditor to levy his execution upon it, according to the state of the title as it should be found to be, with reference to prior claimants. In this case, the only encumbrance existing, when the lien was created by the attachment, was the mortgage; and when the mortgager discharged that, he discharged it in favor of the party having the first right next after it, which party, in this case, was Herring. By the redemption, then, which Hayes had a right to make, and did make, in fact, Herring’s lien was enlarged, and became coextensive with the whole estate. After the payment and discharge of the mortgage, Hayes had no longer an equity of redemption, but a fee simple, covered by the attachment of Herring, and upon which Herring might have properly levied his execution, as the estate of Hayes, as against any rights acquired by these plaintiffs from the deed of Hayes. And such, and no other, was the estate which Herring had a right to extend his execution upon, either as against Hayes or the plaintiffs. Hayes had no equity of redemption. The levy, then, and the attempted sale of the equity of redemption, upon the execution, passed nothing in the estate, and the attachment becoming dissolved by the lapse of thirty days after the rendition of the judgment, the estate became absolute in the plaintiffs, discharged as well from the attachment as from the mortgage.

The result was thus attained which was contemplated in the bond; that is to say, the attachment therein described became “forever discharged,” so that neither of the plaintiffs needed, afterwards, to have suffered “ any loss, costs or expense by reason of the attachment,” and a perfect and unencumbered title became vested in them. And this result was accomplished by the act of Hayes, the obligor, in discharging the mortgage, and the omission of Herring to make ■an effectual levy.

It was no part of Hayes’ duty to give such notice to Herring as would aid him in enforcing his lien; nor is it necessary for him to show that he stood ready to pay off the encumbrance, if the proceedings of Herring had been such as to render such an act requisite for the protection of the plaintiffs.

Nevertheless, it is contended that the plaintiffs are entitled to have some damages, by reason of the alleged failure of the defendants to remove the attachment within a reasonable time.

The obligation of the defendants was either to pay the demand on which the writ was founded, “ or fully and forever discharge said attachment, so that the plaintiffs should suffer no loss, &c., by reason of it.” The alternative form of the obligation is plainly intended to give an option to the obligors, of at least all the ordinary means by which attachments are dissolved, • and to allow the time reasonably necessary for the use of such means.

As one of these means obviously is to defeat the action in which the attachment is made, a reasonable time would, of course, extend to the day of rendering the judgment; and as nothing appears to show that the result of the action in that case was not doubtful, it would seem not unreasonble to allow till the commencement of a legal levy, which must have been within thirty days, for the party to prepare for his new position, especially as nothing could possibly have been done before that time to disturb the plaintiffs in their possession, for, after all, there was no certainty, till the actual beginning of the levy, that the judgment creditor would conclude to enforce his lien. In this view, the attachment must be holden to have been dissolved within a reasonable time; that is, a time contemplated by the parties.

But, considering that the only fair object of the parties was indemnity, and that any performance which proved seasonable for that object, was all that could be required, it is too plain for question that the performance was within a reasonable time. The plaintiffs have not been disturbed, damnified, or in danger of being damnified, by any omission or tardiness of the defendant obligors.

To allow a recovery- of damages, in a case like this, in which indemnity was the only object properly in view, and the only object embraced in the obligation, and where that object has been fully and conclusively attained, whether by the act of the obligor, or by failure of the contingency upon which his action was required, it is immaterial, and that, too, without reasonable apprehension of danger to the obligees, from any negligence or delay of the obligors, would be making a use of the contract which neither party could fairly have contemplated, and which would do manifest injustice to the defendants. It seems to be a case in which the defendants might have pleaded non damnijicatus, and required the plaintiffs, in their replication, to show special damage. 1 Saund. 117; 2 Wils. 126.

From what has already been determined, it is apparent that the payment of- any money by the plaintiffs, to redeem from the levy of Herring, was wholly unnecessary, and voluntary on their part. The levy was wholly void, and at the time of the payment, thirty days had elapsed since the rendition of the judgment, and the attachment, of course, was dissolved.

There is no ground upon which the plaintiffs are entitled to recover in this case; and the rulings of the court were entirely correct. There must, therefore, be

Judgment on the verdict.