Paine v. Webster

1 Vt. 101

• Court: Supreme Court of Vermont
• Decided: January 15, 1828
• Status: Published

Opinion

Hutchinson, J.

as follows ; (he having first stated the case as herein before stated.) The decision of the court in this case must involve such an amount of property, and embrace principles so important, and be made by two justices only of the court, we have felt disposed to receive all the light upon the subject, which a full investigation could afford, and become fully satisfied of the correctness of the principles we adopt, before a final decision is announced. The Cause has been so industriously prepared and so ably argued by the counsel on both sides the present term, that we may safely conclude that nó matter of importance to the parties has failed of being presented to our notice. We* are well agreed in most of the points presented, and in all that are of essential interest to the parties. To avoid repetion, these points will severally be disposed of as they are mentioned. 1st. The defendants contend that, if the plaintiff has made out ever so good a title in and of itself, he has let it lie dormant till the statute has run in their favor. Upon this ¡joint the case shows that said Shadrach claimed to hold under said deed from Silas to him of Sept. 12th, 1805, adversely to said Silas and to all claiming under said Silas, except said other defendants, who after that time, paid rent to said Shadrach according to the tenor of said lease, and was admitted by the plaintiff to have holden adversely to said Hitchcock and Allis, and to the plaintiff after the cause of action accrued to the said Hitchcock and Allis, and to the plaintiff, (if any) under the said levy. The plaintiff’s action was commenced by issuing the writ, July 30th, 1821, which was served, August 1st, of the same year. It becomes necessary here to ascertain when the adverse possession of the defendants commenced. If it commenced from the date of the deed from Silas to Shadrach, of September 12th, 1805, as contended by the defendants, the fifteen years were complete before this action was commenced. It is evident the statute could not begin to run against the title of the plaintiff till he or those' under whom he claims, bad a cause of action against the persons in possession. Until Such-event there can be no neglect. While the lands are vacant, or the persons in possession do not claim to hold adverse to the plaintiff, he may rest quietly and safely. What then, was the fact ?— Shadrach was not in possession at all after he took his deed, until he.became so by attaching to himself the possession of the other defendants. Until that event no action could be maintained against him. No action could be maintained against the other defendants until they neglected to pay their rents or taxes, so as to give a right for the landlord to reenter by the terms of the lease, (which would not make the possession adverse,) or attorned to a new landlord who claims adversely, and thereby effect an ouster of the lessor or those claiming under him. The case shows nothing with any definite certainty, when the possession became adverse to the plaintiff’s claim. Nothing surely till after July, 1806, which is the latest period of the commencement of the fifteen years to avail the defendants. This objection to the plaintiff’s recovery is then disposed of.

2d. It is objected, That the plaintiff had conveyed away his title to John Curtis, who had conveyed to Shadrach Hathaway; and that the court ought to have admitted these deeds in defence to the action. It should here be noticed that these deeds were excluded, not because the court undertook to decide the fact which might show the possession of the defendants adverse to the plaintiff at the date of his deed to Curtis ; but because it was admitted by the parties to be thus adverse, aqd so it has been now treated in argument. But it has been urged that the deed was a trust-deed and given by one trustee to another, and therefore not within the statute. The court consider that though the deed were a trust-deed, and Curtis had an interest in it, in reference to .his own share, yet it was not given to him in execution of any trust, nor to release to him his interest; but was a deed given to him as it might be vto any other person, creating in him a trust, and malting. him an agent to the plain tiff to sell the lands, mentioned in the deed, and take securities directly to the several persons for whom the trust existed, and therefore would not be void by the statute, b.ut would operate as a naked power to convey. But it is urged that,. admitting the deed void by the statute under other circumstances, yet the deed

from Curtis, being to the Shadrach Hathaway he was in possession, it is not within the meaning nor mischief of the statute.— This is urged, upon the authority of the case of Jackson vs. Given, Johns. 105. That case seems directly in point; and it may possibly be safe to treat it as law; but we entertain some doubts of its happy tendency. It seems in that case tó divest the real owner of his land, by reason, however, that his deed was not recorded prior to the new deed thus procured. The creditors of a grantor may attach the land as his property, and if a person in adverse possession should obtain a deed from die grantee, and that should defeat their attachments, it would be a new mode of divesting rights. If that case establishes a rule, there must be frequent cases of exceptions to this rule as titles pass in this state. But this question may be decided for the plaintiff upon another and safe ground. The deed from Paine to Curtis carries it's own conditions, on which alone he could convey; and the defendant receiving a deed without a compliance with those conditions, and furnishing security to each cestui que trust for his portion of the pay, can take nothing by the deed; and there was no pretence that any such conditions were complied with. Nor would the small interest of Curtis enable him to embarrass the interests of the other persons- in all these lands. He might sell, if he could, such a piece perhaps, as would pay his own portion, but could sell in no other way, nor to any greater extent and give a valid title, without obtaining security .directly to the other owners for their debts. He was not authorised to receive the money in pay, but only to receive securities which he could not aftenvard's discharge. These deeds we consider correctly excluded.

3. The defendants contend that if the plaintiff’s title would otherwise be good, it fails by reason that his deed from Silas, ■though after the attachment, was before the levy, and the levy is so worded that it takes at best only the right Silas had at the daté of the levy, and does not fasten upon the lien created by the at-táeÜment. The court, however, consider that, by the- attachment, the right of Silas is pat in abeyance out of his reach, not to be affected' by any deed of his till the lieh is, in some way dissolved,..^ and the interest is as properly called his interest for the purposes of a levy by the attaching creditor, as if no deed were-given by him to said Slid-drach ; and the expressions in the levy “ all the interest, estate, “ &c. of Silas Hathaway,” fasten lipón the lien created by the attachment as fully as if they had- rejered the expression to his interest, &c. at the date of the attachment.

4. It is objected that the execution and levy are defective in many particulars, and the objection to the admission of the same in evidence ought to have prevailed. The first defect we shall notice; is the defective description of the various lots and parts of lots of land intended to be levied upon. To support this objection several authorities have been -cited, among which are 9 Mass. 92, Tate vs. Anderson—7 Id. 475, Barnard vs. Fisher.— 14 Id. 20, Williams vs. Amory.—43 Id. 51, Chickering vs. Lovejoy et als.—11 Id. 163.—1 Conn. Rep. 470, Hitchcock vs. Hotchkiss.—Id. 551, Jabkson vs. De Lacy. Said last two are cases of sheriff’s sales. Also, 3 N. H. Rep. 140, Howard vs. Daniels. Id. 496, Mead et als. vs. Harvey et als. These cases are adduced to show the necessity of certainty in the description, and that this levy exhibits no such certainty ; and some authoritiés cited by the plaintiff afford an argument that the defendants have no reason to complain of the particular uncertainties to which this objection applies. The description appears to be very carelessly made, . and some lots are so vaguely described, the plaintiff does not contend he can hold them. And the defendants do not pretend but that the lot now in questtion and some others are well described. Yet the defendants say that the appraisal, being only of one aggregate amount of all the lots, and some being not well described, vitiates the whole levy. The court have ■ no doubt but that a defect affecting the whole levy, as if the appraisers are not sworn, or were not selected according to the statute, &c. might be avoided by either party. A defect tending to the injury of the debtor may be .avoided by him. But when the defect, like the present, so far as this objection goes, only affects the creditor, and he is disposed to affirm it, and hold what is well described, and lose the remainder, the debtor cannot complain. Where the appraisal . is thus in gross, the creditor must affirm in toto or not at all ; .for he cannot hold the lots well described, and claim a new execution for the amount of the others unless drat amount appeared by the appraisal in the levy and return. A second uncertainty complained of in the description results from a reference in the levy to a mortgage deed from Silas Hathaway to Simeon Haihaway,jun. The levy says “ these lands and certain other lands appear by the records of the town to be contained in that mortgage.” By this it seems that if the appraisers intended to appraise subject to tire incumbrance, the levy has virtually put the whole incumbrance on that part of die mortgaged premises included in'the levy : whereas it is contended that the levy should only have made the creditor tenant in common with the mortgagor. This may be a delicate point upon which to establish a rule that must govern in all cases. The statute has prescribed' no rule ; and no doubt many levies have been'made in both ways. Prob- ' ably enough, courts will feel compelled to décide botir methods to be legal, in cases' that may arise, owing'to the long practice adopted. When a creditor levies upon a part only of the mortgaged premises, and has the same appraised subject to the whole mortgage money, he has no benefit from his levy unless he redeems the whole. If he redeems the whole, the debtor cannot be injured, and has no right to complain. ' Should the mortgagee, instead of pursuing his mortgage, collect his debt on his personal securities against die mortgagor, there would be a difficulty from which Chancery alone could relieve. Such a case has probably/ never existed in the state. The other mode too has its difficulties. When the creditor by bis levy becomes tenant in common / with the mortgagor, in the event either of a redemption or foreriiosure^ or the mortgagee’s relinquishing his mortgage, the levying cred-tor or the mortgagor must resort to his writ of partition.,,' The objections to the two modes are, therefore, nearly balanced. A further objection is raised, to wit, that the mortgage'wds doran uncertain liabilty, and not for a sum certain; and treating it as a mortgage -if nothing in die end proved to be due upon it, would be injurious to the debtor: and its uncertainty is compared to a writ of attachment, served upon land, which, according to the case cited from the 7 Mass. Rep. Barnard vs. Fisher, is too uncertain to be treated asan incumbrance. This principle is correct, if the uncertainty, at the time of the levy, was such' as to make the principle applicable. On a reference to the mortgage it appears to bear date September, 20, 1803: by the condition it appears that said Simeon had signed with and for said Silas, a note to one Robinson for two thousand dollars, paymble with interest in June, 1804 and the condition is that if said Silas should well and truly pay said note according to the true intent and meaning thereof, and should in all things indemnify and save harmless die said Simeon, so that said Simeon should not have to pay said note or any part thereof, nor in any way sustain damage or trouble, then said deed to be void — otherwise to remain inforce. Thisnote had been payable something over ayear and a half-when the levy was made, and in December following, to wit, 1806, the levying creditors sent the money and redeemed the mortgage, and took a receipt from said Simeon, reciting the nature of the mortgage and a decree of foreclosure made in this county in December before the- levy, and which was to expire January 1st, 1807. These facts, with the accompanying dates, are sufficient to repel any presumption of uncertainty about the sum due on the mortgage at the time of the levy. So far, then, as a reference in the levy'to tire mortgage is urged as uncertainty in tire description of the lots of land intended to be included in the levy, and so far as uncertainty is urged in the sum actually due upon the mortgage at fire time of .the levy, the objections cannot 'avail tire defendants. I may here add in reference to an idea suggested in argument, that if the appraisers, all other things being regular, had appraised the land at its full value, allowing nothing for the incum-brance, or allowing any sum not exceeding its full amount, the defendants could not complain ; for the incumbrance is paid off by the levying creditors, and, if not included in the appraisal, this payment is a gift to the defendants, or to the debtors under whom they claim. Appraising subject to the incumbrance, and estimating the same above its amount, is the only matter in this respect of which tire defendants have a right to complain, which upon the above facts ought not to be presumed. Anotherand much more formidable objection to the levy is,' that the levy is not made upon the land, but upon the right, title, interest, &c. of said Silas in the land. The sheriff says in his return “on “ such a day, I levied and extended said writ of execution on all «the right, title, interest, estate, claim, demand, equity of redemption, remainder “and reversion, which appertained to the said debtor in and unto the “ following described lands and tenements, &c.” Afterwards he says he caused all the right, title Sic. repeating the same words, to be appraised in part satisfaction of said writ of execution Sic. at the sum of .$26,050,37. Now this objection is not that the words used would not operate in a deed to convey the land if it was itself well described in the deed : but the objection is that such words and such only contained in the levy and appraisal leave it wholly uncertain on what ground the debtor is left; uncertain what tire appraisers considered his interest and estate and equity of redemption to be. And though the amount of the mortgage might be certain as before noted, it is uncertain at what sum they considered it. It will be recollected that upon this objectioii, a new trial was granted two years ago in this cause; but the court then expressed their willingness and desire to have this, and one or ' two other points, open to further examination. We must now suppose that all the research and reasoning that could be of use, have been put in requisition ; and the objection seems not to be fully met by the plaintiff’s counsel either by authority or argument. They have raised an argument from the use of the word estate in the fourth section of the statute, p. 210. But the word estate does not there stand alone. The expression is, “when any execution “ shall be extended on any real estate, the same shall be appraised” &c. The words real estate maybe considered as th e genus, of which, the words houses, lands and tenements, mentioned in the third section on the same page, form the species. If the real estate is levied upon and appraised and well described, there is no sound objection to the use of that expression, instead of houses, lands and tenements. But the word estate has no such definite meaning.— It means, according to all the authorities cited, a man’s interest in some property. It may be applied as well to a man’s interest in personal chattels as in land.

The plaintiff’s counsel cite upon this point, the 14 Mass. R. 404, Atkins vs. Bean et al. The case itself is not much in point for the plaintiff; for there the appraisers describe the whole premises by metes and bounds, and then appraise and set off to the creditor, one undivided seventh part of the same. They do not appraise merely the debtors interest, or all his interest in the land described ; but they appraise one undivided seventh part. The fact was, the debtor did not own a seventh part, but only an eighth part; and the court decided that the levy was good to hold the eighth part which the debtor in fact owned. They considered that this mistake could prejudice none but the creditor. The counsel lay stress upon what the judge says in support of his opinion, “ that it is not necessary that the officer should set forth the “ nature of the estate taken, or the estate of the tenant for life. All the right, title, interest, &c. of the debtor would pass the remain-<c der as in a deed.” This is wholly voluntary and unnecessary to support the opinion given in the'case, and, if it means what is claimed of it, we cannot subscribe to it as law. If the first clause only means, according to the case, that not saying any thing about the interest of the debtor, but speaking only of a certain undivided portion of the land described, it may stand for law.

If in the case before us, the levy had been upon, and the appraisal of, one undivided fourth part of the land; or had said the whole of the land; or had said Silas'’ interest in said land, being the remainder after the life of A B, or being the reversion after the expiration of the term of ninety-nine years, commencing such a day named, and the like — the levy would be good in point of description to hold any estate of Silas that did not exceed that described, in point of quantity. Again, the expression, all the right, title, interest, fee. that any one could have in the land would seem necessarily to include the land itself, at least, we should be sure they appraised the whole. But when the expression is, all the interest, fee. of Silas Hathaway in the land, we may ask, what was his interest? If, after an expensive litigation this can be determined, we may ask another question, which, according to the rules of law, can never be answered. That is, what did the appraisers consider his interest to be ? If it apppeared from the levy itself that the appraisers considered his interest less than it was, that would not hurt the levy. But if they considered it greater than it was, that would destroy it altogether. And no less fatal is the total uncertainty of what they considered his interest to be.— hfheir varied expressions imply a hesitancy what to call that interest; and the testimony in the case, and the learned arguments upon it, would lead one not to wonder, if the sheriff and appraisers, without such aids as are now afforded, should indeed hesitate what to call that interest; and if they knew not what to term it, they could not well know its value.;'

This disposes of the whole case. But the defendants’ counsel have raised another cardinal objection, that if the levy were ever so regular as a levy upon land, yet said Silas did not own the land; that he had no interest of which a creditor could avail himself otherwise than by levying upon tire rents under the eighth section of the statute ; and have cited several authorities to this point. We are supposing this lease for the present purpose, as the counsel have supposed it, regularly recorded before tire attachment of HitchcocJc and Allis. If it was not recorded, probably, as regards the attaching creditors, the debtor owned the/be. This cannot have been overlooked by counsel. The case made by agreement, has probably presented the fair merits of the dispute.

In adverting to the lease attached to the case, we find its terms of duration are not marked by those words used by any elementary writers to denote the different degrees of interest in land. It is not a lease for years nor for life; nor alease to the lessee and his heirs and assigns forever; but to hold to him and his heirs as long as water runs, grass grows or the sun shines. Beyond this none can enjoy a remainder or reversion. The land can be of no value when the sun ceases to shine upon it. These words must be considered equivalent to the term forever. Silas Hathaway then had no remainder or reversion at die time of the levy. He had conveyed no estate with a limitation upon which it could revert. He had only a right to receive the rents, and re-enter upon the failure of his lessee to pay the rents, taxes, &c. and by the statute of 1818, affirming what the courts had long before treated as common law, he could not re-enter in fact, if the rents, &tc. due were ■ paid into court after action brought to obtain possession.

This interest is not at all a tangible property, susceptible of a levy under the third section of the statute. It is probably within the equity of the-eighth section, under which a creditor may levy upon the rents and profits and compel the tenant to attorn. That section to be sure', speaks of leases for life or years insuring rent. This is not technically a lease for years; but its continuing so many years would not afford a very equitable reason why a creditor 'might not levy upon the rents of some of those years. But, allow it to be a case omitted in fire eighth section, still that will not place it within the third section.' With regard to the reservation of mill-privileges, ores, pine and oak timber, Sic. there is nothing in the case that shows any thing to exist on this lot that is claimed as being within this reservation. This objection to tire plaintiff’s title is adjudged valid.

Marsh and Bailey, for the plaintiff. Brayton and Van Ness, for the defendant.

Further objections important in themselves, become unimportant in this cause by the decisions now made. The recording of the levy in tire county clerk’s office appears to have been one day after tire five month's expired. The authorities cited from Mass. JRep. bythe plaintiff’s counsel, show that the recording there has been considered, in certain cases, as. referring in its effect to a pri- or date, when the levy was otherwise complete and ready for record. There, however, the sheriff delivers seizin when he makes his levy. Here, the debtor has six months in which to redeem before he can be turned out of possession. We rather incline to the opinion that the recording, in this state, is essential to the levy j and must be made in both offices within the five calendar months. But as this is an important question of practice and of title, and unnecessary now to bo decided; and as two only of the justices of the court can sit in this cause, we make no definite decision upon this point.

Further objections are made to the plaintiff’s recovering, such as the recording the word “Mattocks” instead of “Matthews,” in the town clerk’s office; the want of proving notice to the tenants to attorn, and the appointment of' a place for the payment of the rent according to the stipulations in the lease; but without any definite, and unnecessary disposition of these, a new trial is granted, and the cause must pass to the County Court for such new trial.