Catlin v. Jackson ex dem. Gratz

8 Johns. 520

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: March 15, 1811
• Status: Published

Opinion

The Chancellor.

The questions arising in this case, come up on a special verdict, on which a judgment has been rendered in the supreme court, for the defendant in error, the lessor of the plaintiff, in the court below.

In examining the errors assigned, which- in their form are general, the record only affords the test of their existence ; and as, in this case, they are assigned on the matter of the special verdict, it will be necessary to aftend to the points found by it," from which it was imposed on the court below, to determine, as a question of law, arising upon the facts found, whether a judgment ought legally to be rendered for the plaintiff, or the defendant; and if, in adjudging on those points, they have erred, it is the duty of this court to correct the error; and if they have not erred, to affirm the judgment.

Both parties having relied on George Croghan., as their common source of title, his seisin, and the descent from him to the.lessor of,the plaintiff, are not matters of controversy; though necessarily found by the jury, as facts essential to be presented to the court. So as to the attainder of Thomas Janes, as a person named in the confiscation act.

[Here his honour stated the substance of the special verdict.]

To determine whether the errors relied upon in argument, are such as the judgment of the supreme court ought to be reversed, it becomes necessary to examine, 1. Whether the seizure of the sheriff devested the seisin of George Croghan ?

2. Whether the sale at auction devested it ?

3. Whether the sheriff’s deed was delivered as an' escrow ; and, if so, what was its legal effect ?

4. Whethei* the act of the legislature, of the 22d October, 1789, devested the interest of the lessor ?

1. Preliminarily to the consideration of these points, it will be proper to remark, that the finding of the jury of any fact, as existing, is in exclusion of the inducements to such finding, on a view of the evidence which was the ground of their verdict; that whatever fact is not found is deemed not to exist, and that the court cannot supply any defects in such finding by intendment.

The first question that presents, is as to the effect of the sheriff’s seizure. From the nature of the subject, we cannot' expect to find any governing cases among those adjudged in the English courts. There are some, however, which have an analogy to it.

_ . , Previous to the statute of 5 Geo. II. c. 7. no judicial sales of land could be made here, under any common law process; and whether the elegit was ever introduced in practice, is doubtful, as the small value of the income of real estates, afforded little inducement to resort to it, as a means of satisfying a debt due upon a judgment ; but, upon the ^passing of that statute, though professedly intended to enable ’ the British subjects in England, to sell real estates, on execution in the colonies, in order to satisfy the debts due to the former, it received a liberality of construction here, which extended it to all judgments; and in practice it was even applied to the sale of lands of a testator or intestate, on judgments recovered against their executors or administrators, on the ground that the statute had completely converted real into personal estate, as far as respected the satisfaction of debts. Many estates are now held under sales of that kind, and the 5th section of the act passed the 4th of April, 1786, (Jones and Varick's edit. Laws of N. Y. vol. 1. p. 277.) expressly restrains such sales; a restraint perpetuated by an existing statute. (Rev. Laws, vol. 1. p. 538. s. 13. sess. 24. c. 174.

The statute 5 Geo. II. enacts, “ that the houses, lands, negroes, and other hereditaments, and real estate in any of the plantations, belonging to any person indebted, shall be liable to, and chargeable with, all just debts, duties, and demands, and shall be assets for the satisfaction thereof, in like manner as real estates are, by the laws of England, liable to the satisfaction of debts due by bonds, or other specialty, and shall be subject to the like remedies, proceedings and process, in any court of law or equity, in any of the said plantations, selling or disposing of any such houses, lands, negroes and other hereditaments and real estates, towards the satisfaction of such debts, duties and demands, and in like manner as personal estates in any of the said plantations respectively, are seized, extended, sold, or disposed of, for the satisfaction of debts.”

The construction of this statute presents some difficulty. The section quoted is laboured and complicated! but it appears to me that the first member of it prescribes both the remedy and mode of seizing, extending, selling or disposing of land which, as far as there are any analogous proceedings in any courts of law or equity, in the plantations, in which the real estate is situated, must be conformed to them ; but to prevent all possibility of doubt, it is added, ‘f and in like manner as personal estates are-seized., extended, sold or disposed of, absolutely, so as to pass the whole interest of the debtor to the purchaser,

In several essentials the effect of the execution must be different from a ji, fa. levied on personal estate only. The delivery of the fi. fa. gives no new rights to the plaintiff, and vests no new' interests. The general' lien it created by the judgment and the execution, is merely to give that fien effect, not by vesting a possessory right to the land affected by it, in the plaintiff", t>ut by designating it for a conversion into money by the operation of the ji. fa. and the act of the sheriff, by virtue of it. It is not so as to personal property. That is bound from the delivery of the f. fa. to the sheriff. When he seizes, he may remove it for safe keeping, and this not only to give effect to the seizure, but for his own security. He may maintain trover or trespass, for converting or injuring it, on account of the special property he acquires in it by the seizure. (2 Saund. 47.) So a carrier may maintain trover against a stranger, who takes away goods held by him to carry; and Holt, Ch. J. ruled, that if goods were rescued, the sheriff was not liable, which could not be, if he acquired a property absolute. (1 Vent, 52. 1 Brownlow, 132.)

None of these reasons apply to real estate. It is not necessary that the sheriff should possess himself of it, for safe keeping. It is not possible to eloign it, and the terms of the fieri facias give him no other authority than such as is incident to the duty he is required to perform. The cases from 2 Show. 85. and 3 Term Rep. 395. show, that, in England, upon an extent, under an elegit, the vendee is put to his ejectment; and so has been the practice here, which appears as well from the uniform mode of conducting seizures of real estate, as from some cases reported on that subject.

In practice, the defendant, if he is the occupant, is never disturbed, till the sale is consummated. A contrary practice would expose the defendant’s property to waste and destruction, impair the plaintiff’s security, and involve the sheriff in very inconvenient and useless responsibilities.

It has been said, that the estate was in custodia legis, and in abeyance. There is no principle of law, which ean, in its operation, devest an estate, to put it in abeyance. (Co. Litt. 342. Vin. Abr. tit. Abeyance, pl. 12.) That is produced only of necessity. The law never allows it to be the act of a party; and neither law nor reason exists to justify the application of the doctrine to an act of the sheriff. It is limited to a very few cases; never created eo instanti; but is the effect of some contingent event, which would frustrate the purposes of justice, if it was not interposed. If applied to the incongruous operations of abeyance and remitter, it might be required to cooperate to restore the defendant to the statui quo, if, by any accident, a sale should not succeed the seizure, or the debt be satisfied. This species of losing and acquiring seisin, cannot be deduced from any legal principle. It is not congenial to the ge-. nius of our law, thus to vest and devev»- a by mere volition, without an act indicating ihe [.¡..-üi: ¿fs transferring it from one to the other. The word im= ports an actual, not an ideal possession; for even an entry for the purpose of asserting a claim, does not oust the seisin of the actual occupant.

I am satisfied, that the interest of Croghan was not °therWÍSe affected by the seizure, than as it became the inceptive step to a legal transmutation of his estate, if other requisites had followed to consummate it.

2. The second question is, whether the sale at auction devested the seisin?

Auction is calculated to ascertain the terms on which property offered for sale is to become the purchaser’s. The terms of payment, quantity, and extent of the interest to be disposed of, are prescribed by the person holding the auction. The bidder consummates them by adding the sum. These, all other legal requisites being complied with, constitute, not a conveyance, but, at most, a contract for a conveyance. The one party contracts for the delivery of a conveyance, the other to pay the sum bid, as a concurrent act, at a specified time, or, if without a specification of time, within a reasonable time.

Without the payment of the money, no right can accrue to the purchaser; for, if a bill was filed in chancery for a specific performance by the vendor, unless the terms had imposed on him the delivery of a conveyance, precedent to the payment, he could only be bound to offer it, upon receiving the purchase-money. If the money is not paid, or if the sale does not operate to satisfy the debt, pro tanto, what benefit arises to the owner, as the consideration to him for devesting it l

In Pennsylvania (l Dallas, 419.) it would be competent for a sheriff to return that the money was not paid, and that the premises remained unsold. In chancery, if the mjsney hid at auction is not paid, it is the uniform ^i'actice to annul the sale. In England, the biddings are often opened, before the master’s report is confirmecj5 which could not possibly be, if the mere sale at auction vested the seisin in the bidder. A contrary doctrine would render judicial sales intolerably perplexing to all parties concerned.; to the sheriff, because it would expose him to incalculable embarrassments; to the 'plaintiff, because it would tend to delay the satisfaction of his judgment; to the defendant, because it would place the care and management of his estate out of his reach, long before it could possibly be applied to the satisfaction of the plaintiff, in his exoneration. The doctrine in the extent contended for, would conclude to devest the defendant of his estate, as in this case, from 1774 to 1779, without satisfying a cent of the debt, or even preventing the interest from running against him; for if that was in reasonable time, the mere payment of the sum bid, would entitle the purchaser to a conveyance. In every point deduced from strict law, from its liberal exposition, from general principles, or from considerations of inconvenience, this doctrine is unfounded. The defendant Croghan’s right of entry was not tolled,, and the descent found by the jury devolved his right upon his heirs.

3. As to the third point, whether the sheriff’s deed was delivered, as an escrow; and, if so, what was its legal effect? •

That the sheriff’s deed was delivered to James Duane, as an escrow■, to be delivered to Thomas Jones, whenever the consideration money therein mentioned, should be paid by him to the said James Duane, is á fact found by the verdict. That the money has ever been so paid, has not been found ; and on the performance of the condition of payment only, could it operate. If Jones was, now, in full life, legally capable of performing the act required, (the payment,) and if even it were possible to pronounce that it was still competent for him to give the deed effect, by paying, the fact, that it was unpaid at the time of the commencement of the action, and not even paid at this moment, must stare him in the face, and repel every pretence that the deed could operate in his favour. Croghan has never forfeited his estate: The receipt of the money by the treasurer could not affect his right. It was neither a payment to him, his heirs, or to Duane; for so far from being a payment, before, the sale under the act of 1788, the right of disposition has been exercised, before any payment made ; and to all legal purposes, the consideration money was still unpaid, as related to the condition on which the deed was, by its second delivery, to become operative; If so, how can a title be derived under a deed, which-could not, even now, pass the estate described in it, to the purchaser, were he in full life ; and which has never-been called into existence by the payment of the consideration money to Duane, by the purchaser. If he could not derive a title under it, the persons claiming under him, must, necessarily, be equally destitute of it. ’

The verdict has found the deed of the sheriff, the release of Goldsbrow Banyar, and the proof of the execution before a master in chancery j but those facts conclude nothing, here; for though they might be inducements to a jury, to find the delivery of the writings as escrozvs, it is not expressed, and cannot be intended, that they were either the sole inducement, or combined with others, to the finding of the delivery of the sheriff’s deed, as an escrow. There might be others, but whether there were or not, the jury have not so found, as to enable this court to judge, whether the inference, that the deed was delivered as an escrow, was correctly deduced from those facts, or not. The court cannot infer the existence of one fact from another, positively found by the jury, in the matter on which it is required to pronounce the law.

The sale at auction was made before the return day of the venditioni exponas. I do not mean to examine whether a sheriff can, on any occasion, legally execute a deed, as an escrow; though the inclination of my mind is, that he may, limiting it to a day certain, within a reasonable time; for it is no more than the law would impose on him, to offer the deed, when he required pay-2nent of the consideration money; and the second delivery could only give it operation ; or, by referring it to a reasonable time, generally; in which case, circumstances must enter into the estimate of what constituted a reasonable time, either the return day of the venditioni exponas, or, at farthest, the next vacations and, when that elapsed, the sale might well be considered as inoperative.

The acts of executing the deed, of delivering it as an escrow, of retaining it as such, and the neglect of executing a compliance with the condition of the delivery, were exclusively those of the plaintiff’s attorney in the suit in the supreme court, and of the sheriff; for the defendant Croghards right was treated as extinguished, and with those transactions he had no privity. The real estate remained untouched, the consideration money unpaid, the deed undelivered, the venditioni exponas untied, and the whole so modelled, as to subserve the. view of the plaintiff,

Suppose Croghan vigilant and attentive to his interests, of which there is no evidence, and disposed to ascertain the state of his property, by repairing to the clerk’s office, he might have discovered that a venditioni exponas had issued, but that it had not been returned. By applying to the sheriff, or Mr. Duane, if they were alive and accessible, he might have acquired the information that an auction sale had been made; but it must have been the mere effect of candour, if they had gone a step further, and explained the mode to which a resort' had been had to deves.t him of his interest, so as to put it in his power to penetrate the clouds with which his. estate was enveloped; and it cannot possibly consist with any legal or rational exposition of the powers of a .sheriff, to permit measures of this kind, to devest an estate, after so long a lapse of time. Hence, long before the civil death of Jones, the reasonable time in. which the deed might have been made absolute, by the payment of the consideration money, had elapsed. If the purchaser had paid tardily, and Croghan or his heirs , had laid by, and suffered the lands sold to be occupied under the sale, without interruption, it might .present other considerations not necessary to be now pursued.

If nothing passed by the deed, the act of attainder ’ could not create a right, once in posse, but never.vested, or revive such a one as had been lost by the laches of the party in whose favour it was .intended ,to operate, prior to its passing; and however broad and comprehensive the terms of the act might be, it .could not affect the estate in question.

By the verdict, it is found that the sheriff returned, that he had the moneys directed to be levied, ready u before our lord the king, at the day and place within contained.” The day and place clearly relate to the return day, and to the court then held, at which the venditioni exponas was made returnable, and could relate to no other. From the special verdict it appears that the sheriff had seized 40,000 acres of land of the defendant Croghan; that he sold divers parcels of it, and, among others, to -T/wfnas Jones, the premises in question. There is no fact found to rebut the return, if it could be rebutted or traversed; that he had the money ready at the return day; and if so, the debt was satisfied. His authority had ceased, and the execution of any deed subsequent, would certainly be of questionable validity ; for from aught that appears, the debt might have been satisfied by the sale of the other parcels. That the return was not filed till 1788, does not destroy its relation to the return day. It was at most a filing nunc pro tunc; and the withholding it from the proper office could not attach any legal effect to it, but such as it would have had if it had been regularly filed.

This leads me to the last point, xrbether the act of the 22d March,» 1788, deve.sted the lessors’ interest?

it was, as It has no It appears, from its terms, to have been passed upon the suggestion and prayer of William Peters. far as it relates to this subject, a private act. saving of the rights of others; but its professed object is to convert the land described in it and in the sheriff’s deed, into money; to apply so much of it as might be necessary, to the satisfaction of the consideration money, together with the interest, to the judgment creditors of the said George Croghan, or their heirs and assigns, according to the priority of their respective judgments remaining unsatisfied; and to pay the overplus of the said moneys, if any there were, into the treasury of this state. But whether the payment into the treasury was made, for the ulterior benefit of persons interested, oías part of a fund vested in the state, by the attainder of Jones, is not expressed ; but if for the latter purpose, it must evidently have been under the erroneous opinion that the residuary interest of Jones had so vested.

That the state was not to be responsible, is evident from the section expressly imposing a departure from the usual mode of conveyance of forfeited estates, by the omission of the warranty.

The act, for the reasons assigned by the supreme court, could not affect Croghan's property. It is not its professed object; and no legal intendment can be admitted to support a construction so replete with injustice. He was a stranger to the acts A violation of private rights, by legislative acts, is never to be presumed ; and a decent respect to that branch of the government of the state, must ever repel a presumption of that kind. In doubtful cases, the • court would uniformly give a construction consistent with the provisions of the constitution ; and it must be- a clear and unequivocal intent, which the court Would not meet with the most liberal construction, in order to prevent its operating to the prejudice of private right. It is not presumable that •the legislature will ever be guilty of such a palpable violation of the constitution. If they should do so, it may-present an interesting epoch in the history of our juris-; » prudence; but it cannot be useful to anticipate it.

The present case is that of a private act, passed at the instance of the parties, to remove embarrassments in the arrangements of their interests only, which cannot affect ? strangers, or devest the rights of others, not parties or privies to it. It is a species of conveyance, which, like all others, the' parties take at their peril.

The cautions observed by the British parliament, with respect to private acts, are particularly mentioned by Blackstone, (2 Black. Comm. 345.) under the head of “ Alienation by matter of Record.” Speaking of private, statutes, he says, “ Acts of ’this kind are, however, .carried on' in' both houses, with great deliberation and caution; particularly in the house of lords, they are generally referred to two judges, to examine and report, the facts alleged, and to settle all technical forms. Nothing, also, is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter, unless such consent shall appear to be perversely, and without any reason, withheld. And, as before hinted, an equivalent in money or other estate, is usually settled upon infants or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act; and a general saving is constantly added, at the close of the bili} of the rights and interests of all persons whatsoever?. except those whose consént is so given or purchased, and who are therein particularly named, though it has been holden, that even if such . saving be omitted, the act shall bind none but the parties.”

He then adds, “ A law thus made, though it binds all parties to the bill, is yet looked upon more as a private conveyance, than as the solemn act of the legisla» tore.”

If in Great Britain, where all these precautionary measures are taken to preserve the interests of strangers, private acts are restrained to the parties only, who are evidenced to be such, by consent to them, either in person, or by those who legally manage their concerns for them, and if, when the suggestions on which the act is passed are proved fraudulent, a court of chancery will relieve against them, which is there well settled, the general practice, which obtains here, with respect to the passing such acts generally, on the bare suggestion of the applicants, affords additional and very cogent reasons against relaxing such restraints j and it can scarcely be necessary to add, to devest an interest of a stranger to it, is contrary to the clearest dictates, of justice, and repugnant to the constitution.

Whenever a case is so nicely poised, as to render it doubtful which of the parties is legally entitled to thc judgment of the court, considerations of hardship may be mingled, to aid in preponderating the scales of justice, on one side or the other: but where the law is clear, it must prevail, regardless of considerations of that kind. We sit not here to pass upon the personal ■merits of the parties in controversy, but upon their rights; nor is it imposed on the court to inquire what ulterior remedies are in the reach of either. They must be left to seek them, as they may be advised, under the certain assurance, that if there is a right, there is a legal remedy to enforce it. The imperious duty of this court, prescribed by the solemnity of the official oath of its members, is to decide according to law.

Every view, in which I have been able to place this subject, concludes to the affirmance of the judgment of the supreme court, and I am, therefore, for affirming it.

This being the unanimous opinion of the court, was thereupon ordered and adjudged, that -dr pr.l ment of the supreme court be affirmed; with double costs to be taxed, Sec. and that the record be remitted' _ 7 to the said court.

Judgment affirmed.