Fletcher v. State Capital Bank

37 N.H. 369

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1858
• Status: Published

Opinion

Sawyer, J.

The parties in this case are respectively judgment creditors of Beza Latham, and they claim to hold the same land of their debtor by virtue of the extent of their several executions upon it.

The defendants’ extent has priority in point of time — the date of their levy being March 22, 1855, and that of the plaintiff March 15, 1856. They, consequently, have the better title, if their levy can be sustained. They are, however, equally entitled to judgment if the plaintiff’s levy is bad as if their’s is good. The plaintiff can have judgment only in the event that both branches of the ease are found in his favor; namely, that the defendants’ levy is bad and his good.

Several exceptions have been taken to each. It is proposed to consider those which have been urged against the defendants.

In the description of the three parcels embraced in the .defendants’ levy, the number of acres in each is stated, and from the whole area is deducted the quantity of land covered by highways. It is objected that this deduction vitiates the levy. The ground taken is that by it the appraisers intended to make a reservation of the land covered by the highways; that this land was not appraised, and that this reservation, being void for uncertainty, it thus results that the land covered by the highways, being within the limits described, passes by the extent if held to" be valid, and nothing is allowed to the debtor for this land towards the satisfaction of the judgment.

This objection is founded upon a misconception of the object and effect of the deduction. It is not a reservation of the land, but merely a statement of the fact that the premises are encumbered with public easements consisting of the highways upon them, and of the deduction proper to be made in setting forth the number of acres which they contain, available for useful purposes. The quantity of land need not have been'stated; but, if stated, there is no objection to setting it out in this mode ; by deducting the quantity occupied, by the highways from the whole number of acres included in the premises described.

It appears from the case that there is a highway upon one of the parcels, and it does not appear that there are not highways on each of the others. The fact might not be material, if it had appeared. The appraisal is made not by the acre bnt in gross, and it must be understood that the appraisers estimated the entire tracts at their just value with these encumbrances upon them, by which the quantity of land within the boundaries described is diminished, for all practical purposes, by about four acres, and that this is all that is to be understood from the certificate of the appraisers in reference to the highways and the deduction on account of them.

Another, and the principal objection to this levy is, that it is made subject to the homestead exemption, — the certificate of the appraisers setting forth that the three tracts are “ of the value of $13,690, and no more, subject to the widow’s dower and the homestead exemption.” It is objected that the levy is void because neither the debtor nor his wife, though occupying the premises as their family home at the time of the levy, made application to the officer levying the execution to set off the statute homestead, and therefore no homestead exemption existed to which the extent could be subject. The argument is, that the statute of July 4, 1851, commonly called the homestead exemption act, makes no provision for deducting the value of the debtor’s statute homestead from the appraised value of the entire estate upon the levy of an execution upon it; but gives a remedy only by way of setting off the homestead on application of the debtor or his wife; that the exemption is a new right given by statute; that a way for enforcing it is therein provided, and that this statute mode is to be followed, to the exclusion of all others. The result of this view is, that the statute gives the homestead exemption, as a right in the debtor, only in cases where an execution is about to be levied on the estate of the head of a family, occupied as his family home, and he and his wife make application to the officer levying to have the homestead set off in the manner provided in the act. Upon this view the statute is to have precisely the same operation and effect, in reference to the right of the debtor to the exemption, as if it had merely declared that a homestead exemption should subsist when the dwelling of the debtor was about to be levied upon, provided he or his wife should apply to have it set off’ at the time of the levy, and the homestead so set off should not be subject to attachment and levy or sale on execution, and should not be assets, &c. This mew is founded upon a misconception of the purposes and scope of the enactment. It narrows down the objects of the statute from that of creating the homestead right for the use of every head of a family, for the benefit of himself and his wife and minor children, to that of setting up a homestead exemption for the benefit of an execution debtor during his life, and his wife and minor children after his decease. In the case of Norris v. Moulton, 34 N. H. 392, it was decided by this court that the statute has operation and effect much beyond this. The provision in the first section, establishing the exemption, is expressed in the broadest terms, as applying to the family home of every head of a family. These terms could not, with any degree of propriety, have been adopted unless the object of the act had been to create a right in every family dwelling which was to be the subject of the exemption. If the purpose had been to establish the exemption only in the comparatively few cases where the family home was about to be levied upon, it is inconceivable that such broad and comprehensive language should have been employed, embracing the family home of every head of a family, instead of limiting it to the family home of every debtor about to be levied upon.

Nor can it be conceived that it was the purpose of the legislature in the enactment to give the statute homestead to the widows and minor children of execution debtors, merely because the husband and father, in his life-time, had — fortunately for them —been an execution debtor, and his domicil had been about to be levied upon, and at the same time to leave the widows and minor children of all others without the benefits of the act. It is too clear to admit of doubt that the policy and aim of the act were not intended to be of this narrow and resti’icted character. It has a more liberal and consistent purpose, in securing to all alike the benefits .of the homestead, which it creates as a right in the head of every family during his life, and in his wife and minor children at his decease, whether he may or may not have been a judgment debtor; and while it establishes the right in the head of each family, for the benefit of himself during life, and his wife and minor children at his decease, under the limitations which it prescribes, it provides no mode in which the right may be enforced and enjoyed, except in the case of an execution about to be levied upon the estate; and this is to be resorted to only at the option of the debtor or his wife. It is to be set off in such case upon their application therefor.

It is a general rule of law that when a statute confers a new right, and prescribes the mode of enforcing it, the statute remedy is to be pursued to the exclusion of all others. But the rule is not of universal application. It applies only where the remedy given is coextensive with the right, and where, from the character and provisions of the act, and the nature of the right and remedy, it is to be understood that the remedy was designed to be exclusive. The rule consequently is to be taken subject to various qualifications and exceptions.

In penal statutes, which are to be construed strictly, and which are not to be extended in their scope and operation beyond what is expressed, the right conferx-ed growing out of a new prohibition of the statute, or arising upon a new offence created by it, is to be enforced only in the mode which the statute prescribes. Several of the cases cited in the argument by the plaintiff’s counsel are of this character. Such are Castle’s Case, Cro. Jam. 644, in which it was held that an indictment would not lie against one for taking upon him to be a justice of the peace when not qualified, as the statute appointed a penalty to be recovered by bill, plaint or information, and before the statute it was no offence. Regina v. Wigg, Salk. 460; Rex v. Robinson, 2 Burr. 799; Smith v. Drew, 5 Mass. 514. In this case of Smith v. Drew the plaintiff brought an action of debt upon the judgment for the treble value of the plaintiff’s goods stolen by the defendant. The statute under which the judgment was rendered provided that if the offender should be unable to pay the treble value, he might be farther sentenced to make satisfaction by service to the owner, who was empowered to dispose of him in service for such time as the court might order; but farther provided, that unless the owner should sell him in service within thirty days, the goaler might set him at liberty. Parsons, C. J., says, “when a statute creates .a new right, without prescribing a remedy, the common law will furnish an adequate remedy to give effect to the statute right. But when a statute has created a new right, and has also prescribed a remedy for the enjoyment of the right, he who claims the right must pursue the statute remedy. The treble damages were awarded as part of the defendants’ punishment. The right of the owner is an incidental part of the sentence, which must be executed agreeably to the provisions of the statute, and not in any other way.”

The decision in Almy v. Harris, 5 Johns. 175, is to be referred to the same principle. There Harris, being licensed to keep a ferry under a statute which punished the keeping a ferry without a license, brought his action on the case against Almy for interfering with his ferry; and it was decided that the only remedy for such interference was by enforcing the penalty. These, and numerous analogous cases in which the general doctrine is asserted, are cases in which the new right grows out of a penal statute, and the rule which governs in the construetion of such statutes requires that nothing shall be taken by intendment, in reference to the rights and remedies which they give beyond what is expressly declared.

So, too, where a statute confers a new power, the exercise of which, but for the statute, would be a violation of private rights, and at the same time provides the means of executing the power, and a remedy for the interference with pi’ivate rights in its execution, those who claim the power can exercise it in no other way, and those who seek a remedy for its rightful execution to their damage, can have no other redress than such as is prescribed by the statute.

Several of the other cases cited by the plaintiff’s counsel fall into this class. Such is Gedney v. Tewksbury, 8 Mass. 807, which was debt to recover the damages awarded to the plaintiff for land taken for a highway. The statute provided that the Court of Sessions should order payment of the damages out of the town treasury; and, in default of payment within a reasonable time, might levy the amount by warrant of distress upon the property of the inhabitants. It was held that the statute remedy must be followed. So, too, in Boston v. Shaw, 1 Met. 130, the same principle was applied. That was assumpsit, to recover the amount of assessments made against the defendant under an ordinance of the city of Boston for contribution toward the expense of a common sewer with which the defendant’s drain connected. The ordinance authorized the assessment of a tax against the individuals whose drains connected with the sewer, for the collection of their proportionate shares of the expense, and provided for the collection of the tax in the ordinary way; and it was held that this was the only mode of enforcing its payment. Of the same character is the power conferred upon corporate bodies by their acts of incorporation, to assess the shares of the members, and to enforce the assessment in a specific manner. Turnpike v. Gould, 6 Mass. 44; Turnpike v. Adams, 8 Mass. 138; Glass Co. v. White, 14 Mass. 286; Bangor House v. Hinckley, 12 Me. 385. In all such eases if no provisions exist in the statute to indicate that the remedy is intended as cumulative, it is held to be exclusive, because in all such cases the powers, rights and remedies given are matters slricti juris. But in all cases of the grant of such power, if it is to be gathered from the provisions of the statute that the means prescribed for executing it, or the remedy given as a redress for the injury which its execution occasions to the rights of others, are not intended to be exclusive, but cumulative, then the rule does not apply. Thus in Chesley v. Smith, 1 N. H. 20, which was assumpsit by a farmer and renter of a toll-gate, under a turnpike corporation, for tolls incurred by the defendant in passing the gate Avithout payment, when it was erroneously supposed, that he was entitled to pass toll-free, the act of incorporation, giving authority to detain the traveler until the toll was paid, it Avas contended that this statute remedy for enforcing the toll excluded all others. The court admitted the general doctrine, but held that it was subject to the qualification, that, where the remedy is given by statute, in order that the right may be more effectually, or more conveniently, or expeditiously enforced, the provision giving the remedy being intended for the benefit of the party to whom it is granted, is, unless other remedies are expressly excluded, to be construed favorably, and considered cumulative rather than restrictive, and on this ground the action was maintained.

The ground upon which that case was held to be an exception to the general doctrine, equally exists in this. The remedy given by the statute of a set-off of the homestead by appraisers appointed on application to the ofiicer levying the execution, is intended for the benefit of the debtor, that he may have a more convenient and expeditious method for having his homestead interest assigned to him in severalty, when the estate in which his homestead right subsists is about to be taken on execution, than the more tardy and complicated proceedings of a petition for partition.

But upon another view, a homestead exemption existed in this case to which the levy could be made subject, even if the statute provision is to be considered as restrictive, and excluding other remedies; for it can be held to be thus exclusive only in the particular ease for which the statute remedy is given; that is, for setting off the debtor’s homestead as an estate or interest to be held in his right, when an execution is levied. The right to be so set off is his homestead, to be exempted from attachment and levy, or sale on execution against him, the head of the family, as the judgment debtor; and if set off on the application of the wife, it is to be for his and her benefit in his right, and during his life. At his death the statute gives the homestead, whether so set off or not, to her, and to the minor children in her and their own right; and to these rights of theirs, accruing at his death, the statute remedy does not extend. It is limited to the setting off of his homestead as an estate or interest, to be held in his right during his life. That the statute gives such right to the wife, as a contingent inchoate interest during the life of the husband, without an assignment to him in the statute mode, was one of the points held in Norris v. Moulton. The statute remedy, then, is not coextensive with the rights which it creates. In such case the construction of the provisions conferring the right is not necessarily to be narrowed down to the ease for which the remedy is provided. In a case of doubt as to the intention of the act in reference to the extent of the right which it creates, a consideration of the nature and extent of the remedy provided may aid in giving the proper construction to the statute, as to its meaning in reference to the extent of the right. But where, as in this case, from the whole drift and policy of the enactment, independent of the provision giving the remedy, it is obvious that the right is established in cases which the remedy provided by the statute does not reach, the remedy at most is to be held exclusive only in that case to which it applies, and, in those cases which it does not reach, such remedy is to be applied as, upon principles recognized in analogous cases, may be adapted to the nature of the ease. If it be conceded, then, that the debtor’s homestead exemption is lost during his life, because not set out in the statute mode, which excludes all others for setting out that right, still the contingent interest of the wife remains, accruing to her in her own- right upon the death of her husband, in the same manner as her contingent right of dower, and the levy might properly be mad-ej as it was subject to both these contingent rights.

An argument against this position is drawn from the difficulty which must necessarily arise in estimating the value' of the wife’s inchoate interest, in making the deduction, as depending upon too many contingencies, and being too uncertain to admit of a just calculation of the amount of the incumbrance. But this difficulty is no greater in estimating the amount of the-incumbrance from her homestead right, than from her inchoate right of dower. They depend upon the same contingencies, and are incumbrances of the same nature, constituting a “ weight” upon the land, which lessens its value, and consequently proper to be made the ground for an abatement of the price at which it is to be taken by the creditor. That the possibility of dower is an incumbrance, lien, or weight upon the land, affecting its value, is clear. Whether it is such an incumbrance as to constitute a breach of the covenant against incumbrances in a conveyance of the land, has been doubted. Powell v. Morrison & Brimfield Co., 3 Mason 355; Fuller v. Wright, 18 Pick. 405; Marsion v. Hobbs, 2 Mass. 433 ; Nyces’ Ex’rs v. Obertz, 17 Ohio 71.

By the decision in Shearer v. Ranger, 22 Pick. 447, it would seem to be now the settled law of Massachusetts that the possibility of dower is an incumbrance within the covenant, it being unqualifiedly held in that case that an inchoate contingent right of dower was an existing incumbrance, amounting to a breach of the covenant, which it is said by the court “ extends to all adverse claims and liens upon the estate, whereby the same may be defeated in whole or in part, whether the claims or liens be uncertain and contingent or otherwise.” In Jenks v. Weld & als., 4 Met. 404, it was decided that it was such an incumbrance as warranted the appraisers in setting off the land on execution, to make a deduction from the appraised value of the land equal to the estimated value of the contingent right. The same point was decided in Sturtevant v. Sweetser, 12 Me. 520. It is held, too, that the existence of the contingent right exonerates a party who has contracted to purchase the land from the payment of damages at law for refusing to perform the contract until the right was extinguished. Porter v. Noyes, 2 Me. 22 ; Jones v. Gardner, 10 Johns. 266. And it is sufficient ground in equity for the court to deny a decree for the specific performance of the contract. Fuller v. Wright, 18 Pick. 405; Greenwood v. Ligon, 10 Smedes and Marshall 615. It is a proposition too clear for argument, that a lien or burthen upon land, like the inchoate right of dower, the existence of which would seem to constitute an incumbrance amounting to a breach of the covenant against incumbrances, which furnishes legal ground of excuse for the non-performance of a contract to purchase, and equitable ground for a denial of the court to interfere for compelling specific performance, and which, though depending upon contingencies that may prevent it from ripening into an estate or vested interest, may, nevertheless, become at any moment an estate for life in one third of the land, is a lien or incumbrance of such character as to warrant the appraisers in making an abatement on account of it from their estimate of the value of the land. In estimating the amount of the deduction to be made, they must necessarily proceed upon all the uncertainties incident to a calculation of the chances as to the death of the husband and the survivor-ship of the wife. The homestead given by the statute to the wife at the death of the husband, when it has not been set off to the husband in his life-time in the statute mode, is in this particular precisely of the character of her claim to dower, and the same elements for computing the value of the contingent interest exist in the two cases.

Again, it is said that in the ease of several levies upon different parts of the same premises, constituting the debtor’s family home, and of such value that his limited statute homestead may be taken from either j>art, it cannot be known at the time of the levies from which part the statute homestead will ultimately be taken. The deduction of the full value of the homestead must consequently be made in the case of each levy. The same embarrassment exists in the case of several levies upon different parts of premises which are subject to the inchoate right of dower. In both cases the appraisers are to make such abatement as the exercise of sound judgment requires, in view of all the circumstances, including that of the greater or less degree of probability that the dower in the one case, and the homestead in the other, will be assigned in whole or in part out of the particular estate upon which levy is made.

It is further objected, that, by the deduction of the value of the homestead right, that amount of the property of the debtor is placed beyond the reach of those creditors specified in section five of the homestead act, whosp claims, by the express provisions of that section, are excepted from the operation of the exemption, and that the exception to this extent is thereby nullified. The objection is urged as an argument against the construction given to the statute, that it sets up the homestead exemption right in other cases than when an execution is about to be levied, and application is made to have the homestead set off in the statute mode. If the result suggested follows from the deduction of the value of the contingent right, namely, that this amount of the property of the debtor is thereby locked up against the claims of those creditors who by section five are excepted from the operation of the exemption, still this affords no ground for holding, in disregard of the other plain provisions of the act, that the legislature did not intend to set up the right in other cases than those in which the statute mode of assigning it may be applied. This section declares only that the provisions of the act — that is, the provisions which exempt the statute homestead from attachment and levy, or sale on execution, and from administration as assets — shall not extend to judgments rendered on contracts made before the first day of January, 1852, nor to certain other specified claims. The effect and operation of this section are merely to authorize the creditors whose claims are of the character there specified, to proceed in enforcing their claims upon the property or estate of the debtor without regard to the homestead. It does not, however, declare that they shall have priority over other creditors whose claims are not thus excepted, and who have acquired earlier liens. If, then, in enforcing the earlier lien the deduction is proper to be made, because the estate is necessarily taken with the weight of the homestead right upon it; and if, thereby, the value of the right is placed beyond the reach of other creditors, in the levy of whose executions it might have been taken free from the incumbrance, this result follows only because it is necessarily incident to the proceedings. It may, perhaps, admit of question whether the result follows as suggested. It may be that, by a sale of the debtor’s right to redeem, upon an execution founded on such excepted claim, the homestead right is to be held extinguished, as against those claiming under such sale. TJpon this view, the right of redemption would become available to creditors of the class specified in section five, beyond its value to other creditors by the exact amount of the deduction. If, however, no practicable mode exists for reaching the value of the homestead right in such case, for the benefit of creditors of the former class, without further legislation, still it is not a consideration of that controlling character to require that the whole policy of the act, as gathered from its other provisions, should be abandoned because of it.

In every aspect in which the question has been presented by the able arguments of the counsel, we think a homestead exemption existed, to which the levy was properly made subject. The further questions then arise, whether the inquiry is open to parol evidence that the appraisers made too high an estimate of the value of the homestead right, and if so, whether such over estimate avoids the levy.

In Howard v. Daniels, 2 N. H. 137, the demandant claimed under the extent of an execution against the grantor of the tenant, and evidence was offered to show that the land set off was worth from five to seven hundred dollars more than the amount of the judgment. The evidence was insufficient to show fraud in the levy, and it was decided that it was inadmissible to impeach the extent on any other ground. It is there said that extents become records when returned, and they cannot be impeached by parol evidence offered by one who is a party to them, or who claims under a party to them, unless offered in a scire facias for a new execution under the statute, or in a suit against the officer for a false return. The title to real estate under an extent is a title by record. As such, it is to be acquired and proved by the record alone. Sullivan v. McKeen, 1 N. H. 371; Whiting v. Bradley, 2 N. H. 83; Fulwood's Case, 4 Co. 67, a; Hoe’s Case, 5 Co. 90; Gooch & al. v. Atkins, 14 Mass. 378. The return of tbe officer, and tbe certificate of tbe appraisers, embodied in it or accompanying it, and thus constituting an essentia] part of the return, which makes the record title, so far as it sets forth their acts and proceedings required by law in making the extent, must be held to be conclusive when set up by one claiming title under the extent. The case falls within the general doctrine in relation to the returns of officers upon process, that as to the parties and those claiming as privies, and all others whose rights and liabilities are dependent upon the proceedings, the return of matters material to be returned is so far conclusive that it cannot be contradicted for the purpose of invalidating the proceedings, or defeating any right acquired under them. Angier v. Ash & al., 26 N. H. (6 Foster) 99, and numerous cases 'from our own Reports, there cited. And the principle, in its application to the return of an extent, derives a double support from the record nature of the title acquired, and the infinite mischief that must result from holding that as such record title of real estate, it is open to the uncertainties of parol proof, in reference to the acts and doings of those whose proceedings are essential to its validity. The proposition here is to show by parol that the appraisers erred in their judgment as to the value of the contingent homestead interest, the amount of which it was necessary for them to estimate in order to form a just conclusion as to the value of the estate set off. The amount of that interest was necessarily one of the elements upon which their calculation of the value of the estate Avas based. Upon that question, in the absence of any proof of fraud, their judgment is conclusive.

But if the question were open to parol upon the law as held in this State, their over-estimate of the value of the homestead right, and their consequent deduction of too large a sum from their estimated value of the estate, free from the homestead, would not vitiate the levy. The effect of this over-estimate is to set off the land at a lower appraisal than would otherwise have been given to it. In Massachusetts, in the case of McGregor v. Williams & al., 10 Cush. 526, it was held that a mistake of the appraisers in deducting more than the amount due on a mortagage as an existing incumbrance, was fatal to the levy. The levy was made under their Revised Statutes, chap. 73, sec. 31, which directs that in levying executions upon mortgaged estates, by setting off the land on appraisal, the appraisers shall deduct the value of the incumbrance, or the amount of the mortgage debt, when known, from the estimated value of the premises. It was at the option of the creditor to proceed in the levy under this statute, or in the modes recognized in this State, by a sale of the equity, or by an extent upon the estate as unincumbered, regardless of the mortgage. Adopting the former course, it was held that he must proceed at his peril, as the statute gives the appraisers no discretion, but requires them to deduct the amount of the mortgage debt.

This case, then, upon a view of the precise points of the decision, has no application to the question here. The reasoning of the court, however, in this as well as in the cases of Root & als. v. Colton, 1 Met. 347; in Whitehead v. Mallory, 4 Cush. 138, and in Barnard v. Fisher, 7 Mass. 71, would seem to sustain the general doctrine, independent of the statute, that an over-estimate of an incumbrance, and the consequent deduction of too large a sum on account of it, will vitiate the levy. All the cases in which this reasoning is applied are widely distinguishable from this. Thus in Barnard v. Fisher, the deduction was made on account of a prior attachment in a suit pending. It was held that this was no incumbrance for which a deduction should be made. The court say: “ amidst all the uncertainties,” as to whether such lien by attachment would ever become a title by extent, “ to value an attachment in an undetermined suit as an incumbrance upon the land, would be palpably absurd.” In Root & als. v. Colton the appraisal was made subject to a life-estate which had been extinguished. In Whithead v. Mallory the deduction was made on account of the possibility of dower, when in fact there was no possible right of dower, because the husband was never seized during coverture. In all these cases the levy was held void, because a deduction was made for an incumbrance when none in fact existed. In McGregor v. Williams & al., the incumbrance indeed existed, but the levy was held void, because a greater sum was deducted than the mortgage debt, when the statute expressly required the amount due upon the mortgage to be deducted. In none of these cases, and indeed in no ease which has fallen under my notice, is the doctrine maintained upon general principles, independent of statutory provisions, that where the value of the incumbrance is to be ascertained, not by computation alone, as in the case of a mortgage debt, but, as in this case, by the exercise of judgment, and in relation to a matter about which the opinions of men may be expected materially to differ, the levy can be vacated because of error in the judgment of the appraisers from an over-estimate of the value of the incumbrance. The views expressed by the court in the Massachusetts decisions referred to, may be considered as leading to this conclusion. They proceed upon the general ground that the effect of an over-estimate is to give to the creditor more of the land of his debtor, in satisfaction of his judgment, than he is fairly entitled to receive, and that the levy must be held void in the case of such over-estimate, because, otherwise, the debtor will suffer injustice in having too much of his land transferred to the creditor. The necessity of protecting the debtor against this wrong is the prominent consideration presented in this argument, and this necessity equally exists in the case of an over-estimate of the incumbrance from an erroneous judgment of its value, proved by parol, as from a mistake in computing its amount, proved in like manner. If the extent of an execution upon the debtor’s land were to be regarded merely as a proceeding, the object and effect of which were to pay the debt in land instead of money, there would be great force in the views suggested. The object of the proceeding by extent is not thus to commute the payment of the debt, but rather to put the land in pledge for the security of the debt, and thereby constrain the debtor to fulfill his legal and moral obligation to pay in money, and in default of this to give to the creditor satisfaction in land. It is, therefore, inequitable to the creditor to take from him his security upon the land, and thus subject him to the risk of the loss of all satisfaction, either in money or land, by holding his extent to be void because of such mistakes or errors in the appraisers, unless no other way is open to the debtor to avoid the wrong which he may suffer from them. The decisions in this State have proceeded upon this as the more just and consistent view. Thus, in Howard v. Daniels, 2 N. H. 137, it is said, “ the tenant had the power to redeem the land if estimated too low, and the extent being public, and recorded, it is highly probable if the estimate was in truth too low, that the tenant or some other creditor, would actually have redeemed, and thus have availed himself of any difference between its value and the debt of the demandant.”

And in that case the levy was sustained, although proof was offered tending to show that the appraisers had made an under-valuation of from $500 to $700 in an estate worth about $4,000.

In Horn v. Swett, 2 N. H. 301, the appraisers by mistake over-estimated the amount due upon a mortgage incumbrance, and it was decided that this was not sufficient ground to avoid the levy. The court say, “if the land was actually worth more in money than the sum at which it was estimated, the debtor should have availed himself of the privilege which the statute gives him to redeem it, and if unable to do that he should have sold his right to redeem it.” The decisions in Burnham v. Aiken, 6 N. H. 837, and in Odirne v. Mason, 9 N. H. 24, proceeded upon the same general ground, that the levy is not to be avoided for error in the proceedings, if another remedy may be applied for the debtor. It is clearly safe, as it is equitable ground, to assume, in determining whether errors and mistakes of the appraisers which affect injuriously the rights of the debtor, shall have the effect to invalidate the levy, that they are not to be permitted to operate with this severity upon the creditor, unless there exists no other practicable and reasonable way in which the debtor’s right may be protected. "When such remedy exists for him, which may be applied consistently with his obligations and relations to the creditor, and which, when applied, will protect him against the wrong otherwise resulting from the erroneous proceedings, it would be inequitable to the creditor to resort to the severe remedy of holding the levy void.

In a case of this character, where the error of the appraisers consists in deducting too large a sum from the estimated value of the estate on account of the incumbrance, the debtor is relieved from all wrong by redeeming. In order to redeem he is required to pay only the sum at which the land was appraised, and interest upon it. He regains his land by the payment of a sum less than its value, upon the assumption that the error in the appraisal exists; and in making the payment to redeem he does nothing more than to fulfill to that extent the legal and moral obligation by which he is bound to the creditor to pay in money. This remedy is all which his protection requires. Nothing in the relation which he sustains as a delinquent debtor requires that he should have a better than this at the expense of his creditor.

The error of the appraisers, if proved, would not invalidate the levy. Upon all the grounds of exception taken to the defendants’ levy, it must be sustained, and they are consequently entitled to judgment. Various questions are raised by tbe case upon tbe motion to amend tbe returns, wbicb are unnecessary to be considered. The finding for tbe plaintiff must be set aside, and tbe finding entered that tbe defendants did not disseize tbe plaintiff, and

Judgment rendered thereon.