Burnham v. Aiken

6 N.H. 306

Opinion

Richardson, C. J.

delivered the opinion of the court.

Footnotes

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It is said that the tenants in this case are entitled to a new trial, because nothing passed by the extent, under which the demandant claims to hold the land.

Three exceptions have been taken to the extent.

In the first place it is said, that the officer who made the extent charged illegal fees and that a part of the land has been taken to satisfy those illegal fees. And there seems to he no doubt that this exception is well founded in point of fact. Some of the charges are clearly beyond what the statute allows for the services on account of which they are taken.

But when a sheriff takes, for any of the services mentioned in the statute^ any greater fee than is provided in the statute, he forfeits $30, for every offence. And when the debtor has redeemed the land, assumpsit may be maintained for any excess taken by the officer beyond his legal fees. The law thus provides a proper punishment for the offending officer, and a remedy for the debtor, and there seems to be no necessity that can render it fit and proper to hold the extent void on that account, and leave the innocent creditor to seek redress by an action against the officer.

We are, therefore, of opinion that this exception to the extent ought not to prevail.

The next exception to the extent is, that the demanded premises which belonged to Coffin, and four other tracts of land which belonged to Towle, were appraised at one gross sum.

If, when an execution against two is extended upon two tracts of land, one of which belongs to the one and the other tract to the other debtor, each debtor has a right to redeem the land taken from him without redeeming the land taken from the other, this exception is well founded. For if he has such a right, his lands ought to be separately appraised, in order that he may know what sum he is to tender in order to redeem his land. 3 Pickering, 252.

The question, whether he has such a right, depends upon the construction to be put upon the clause in the statute of July 4, 1829, which gives the debtor a right to redeem the land taken by extent. This clause provides, that if the debtor, his heirs, executors, administrators or assigns shall, at any time within one year from the return day of the execution, pay, or tender to the creditor or person having his estate, the sum at which the land, tenements or hereditaments shall have been valued by the appraisers, and interest upon the same sum from the time when the execution and the returnof the extent shall have been received in the office of the register of deeds, then such extent shall be void and of no effect.

The language of the statute of February 15, 1791, on this subject, which continued in force until the statute of 1829 was passed, was as follows : — “ In case the said debtor or debtors, their executors or administrators, shall any time within one year from the return of any execution levied on real estate into the clerk’s office from whence it issued, go to the creditor or creditors, their executors, administrators or assigns, and tender and pay to them the full of the debí and charges mentioned in the execution, and the interest for such debt and charges from the time of the return of the execution into the clerk’s office, as afforesaid, every such debtor or debtors, their heirs, executors or administrators, shall re-enter into such lands and tenements, by due process of law, and be reestablished in their former estate in such lands and tenements.”

It thus appears that the language of the statute of July 4, 1829. is different from the language used in the statute of February 15, 1791. But it seems to us, that the g'eneral rule intended to be established is the same in both statutes. The makers of the statute of 1791, seem to have had immediately in view, and to have particularly provided for cases of executions which should be entirely satisfied by an extent upon lands. It was, therefore, properly provided that the debtor or debtors should redeem, upon payment of the full of the debt and charges mentioned in the execution. But it is believed always to have been the understanding of the bar, that in all cases where an execution was in part satisfied by an extent upon land, that the debtor might redeem under that statute, by paying the appraised value of the land. Such a case was clearly within the equity of the statute.

j>a when several tracts of land belonging to the same debtor were taken by extent he could not, under the statute of 1791, redeem one without paying the whole sum at which all the tracts had been appraised. 1 N. H. Rep. 363.

The statute in Massachusetts provides, that a debtor may redeem any tenement taken by extent upon paying the full of the debt for which the sane tenement was taken with interest. And it is settled there, that when several tracts belonging to the same debtor are taken, one tract cannot be redeemed without paying the amount at which all may have been appraised. 7 Mass. Rep. 74, Barnard v. Fisher; 2 Pickering, 382; 5 Greenleaf, 390.

It has been supposed to be unreasonable to permit the debtor to redeem a particular tract, and leave the rest to the creditor. For some tracts might rise in value and others fall after the extent ; and to give a right to the debtor to redeem some tracts and leave others unredeemed might do great injustice.

We shall, in the first place, consider if Coffin would have had a right under the statute of 1791 to have redeemed his land by paying the amount at which it was appraised.

We have no doubt that the provision of the statute which gives debtors a right to redeem lands taken by extent is to be favourably construed. 3 Pickering, 252. And it seems to us that the true intent of the legislature was to give to every man whose lands might be taken by extent, the privilege of redeeming by paying the sum at which they might be appraised, and interest, notwithstanding the statute, in terms, makes the land redeemable on paying the debt and charges mentioned in the execution. It is not uncommon to bring cases, which are not within the letter, within the rule which the statute prescribes. Thus this same statute of 1791, in terms,made-only lands and tenements belonging to any person in fee simple, liable to be taken in execution ; yet all less estates were held to be within the statute. 4 N. H. Rep. 402, Pritchard v. Brown. Several eases of a similar kind are enumerated in Comyn’s Digest, “ Parliament,” R, 10 — 15.

If it was reasonable to give to the debtor the right to redeem by paying the appraised value of the land and interest when the whole execution was satisfied, it must be equally reasonable to give the right to redeem the land when the execution is in part satisfied by paying the appraised value and interest.

And if he might redeem, when an execution was in part satisfied by an extent upon his land by paying the appraised value, and leave the rest of the execution unsatisfied, no good reason is perceived why he might not redeem in the same manner in cases where the execution was in part satisfied by an extent upon his land and in part by an extent upon the land of a joint debtor. It seems to us that it could not have been the intention of the statute, that when divers tracts of land, belonging to two or more debtors, severally, were taken by extent, each debtor should pay the appraised value of all the tracts in order to redeem his own land. Such a construction is not consistent with the spirit of the statute.

The question, whether Coffin had a right, in this case, under the statute of 1829, to redeem by paying the appraised, value of his land, is much more easily settled. That statute gives the debtor the right to redeem, in express terms, by paying the sum at which the land has been valued by the appraisers. And we see no ground, on which it can be held, that he was bound to pay the appraised value of other land belonging to another joint debtor, and which had been taken by extent under the same execution, in order to redeem his own land. If Coffin’s land only had been taken in part satisfaction of the execution, he would, without doubt, have been entitled to redeem by paying the sum at which his land had been appraised. And why shall he be placed in a worse situation because the creditor saw fit to take other land belonging to another debtor by virtue of the same exe-ration ? It is said that Coffin’s land may have risen in value, and Towle’s land have fallen. This is true. But it may be answered, that if the creditor had not taken Towle’s land, he might have lost all his debt, which was not satisfied by the extent upon Coffin’s land, and yet it is not to be disputed that if the creditor bad taken only Coffin’s land, Coffin might have redeemed by paying the appraised value of bis land.

If Coffin was bound to pay any thing beyond the appraised value of his own land, he must, upon principle, be held to have been bound to pay the whole debt and costs mentioned in the execution. There is no more reason that he should be compelled to pay the value of Towle’s land, than that he should be compelled to pay the whole amount of the execution.

We are, therefore, of opinion that Coffin had a right to redeem by paying the value of his land, and that the extent is void, because his land was not so appraised as to enable him to avail himself of that right, had he seen fit so to do.

We are also inclined to he of opinion that another exception which has been taken to the extent, is well founded. This exception is, that it does not appear that any option was given to the debtor to appoint an appraiser or that he was in any way consulted upon the subject.

The rule is, that nothing shall pass by an extent of an execution upon land unless every thing required by the statute to make a valid extent, is expressly stated or necessarily implied in what is stated in the officer’s return. 3 N. H. Rep. 46, and 87—88; 5 ditto, 525; 4 ditto, 329; 2 ditto, 498.

It is essential to the validity of an extent that the debtor, if residing in the county, have an opportunity to appoint an appraiser. 2 Mass. Rep. 154, Eddy v. Knap.

All that is said in the officer’s return, in this case, is— <! I directed three appraisers to be chosen, that is to say, J. H. R. by the creditor, J. F. by the debtor” — .Whether the debtor or the creditor complied with the direction, it is not stated. It does not appear even that this direction was given to either of them, or that Folsom and Read were in fact chosen by any body.

The usual form of the return is — “ I caused three appraisers to be chosen.” But to canse a thing to be done is one thing — to direct it to be done is quite another thing. What is caused to be done, is done. What is directed to be done is by no means always actually done. But it is not necessary to settle this point, and we shall therefore leave it undecided.

Verdict set aside and a neiv trial granted.

P»Aer, -J. having been of counsel did not sit.