Pierce v. Strickland

26 Me. 277

• Court: Supreme Judicial Court of Maine
• Decided: July 15, 1846
• Status: Published

Opinion

The opinion of the Court was prepared by

Whitman C. J.

— A default was entered in this case, after the action had proceeded to trial, upon an agreement between the parties, if the evidence introduced by the plaintiff would not entitle him to recover, that it should be taken off, and the action stand for further trial.

The questions presented for our consideration are numerous, and predicated upon supposed defects in levies upon the demanded premises, one under which the plaintiff claims, and another under which the defendant deduces title. The latter having been prior in date, and under an attachment on mesne process, will first be noticed., If sustainable it will defeat the plaintiff’s claim. The officer who made it was the defendant himself, who, at the time of making it, was sheriff of this county. In making his return of his doings, he omitted to certify, that the appraisers were disinterested, and has returned only that they were freeholders and discrete men. The statute authorising the levy requires, that they should be disinterested ; and the law requires that it should appear by the return of the officer making the levy, that they were so. Fairfield & al. v. Paine, 23 Maine R. 498; Howard v. Turner, 6 Greenl. 106; Muss v. Gilman, Ib. 209.

The defendant, however, at the trial, filed a motion for leave to amend his return, but the Judge then presiding declined granting it; and it is now insisted, that the Judge erred in so doing; and this is one of the questions saved for the consideration of the Court. Although such questions are addressed in some measure to the discretion of the Judge holding the Court at the time the motion may happen to be made, yet it is now for the whole Court to consider of the matter, and determine whether, under the circumstances here presented, it would be proper to allow the proposed amendment to be made. The return was made in 1837, more than six years before the motion to amend was filed: and nothing appears by which the amendment could be authorized to be made, besides the recollection £of the defendant. This Court has decided, however, that such an amendment may be permitted, even at a remote period, when the original parties in interest remain the same. Howard v. Turner, before cited; Gilman v. Stetson, 16 Maine R. 124; Eveleth v. Little, Ib. 374.

But in this case the plaintiff was no party to the judgment under which the defendant claims ; and of course, is not to be affected by any alteration of the levy consequent upon it, or the return thereof; unless he should have understood from something apparent in the proceedings in that case, that the defect was the result of accident merely. Haven v. Snow, 14 Pick. 28; Johnson v. Day, 17 Ib. 106; Hovey v. Wait, Ib. 196; Baxter v. Rice, 21 Ib. 197. There does not appear to be any thing in the proceedings in the case, from which the plaintiff was bound to have inferred, that the omission was not from design, and a consciousness that the appraisers were not disinterested. It may be said that the plaintiff should have been placed upon his guard from the strangeness, that an officer should have proceeded to make a levy, unless the appraisers were known to him to be disinterested; but it would be equally so in the case of any other omission of duty in making a levy. Moreover, many years had elapsed after the return in question had been made, and the defendant had gone out of office, which are considered as adding force to the objection to an amendment like the one proposed. Hovey v. Wait, before cited. But an objection, paramount to all others, arises from the fact, that the individual to make the amendment proposed, is the defendant himself. Under such circumstances to grant the motion would certainly be unprecedented, and also of a dangerous tendency. The temptation to disregard the truth in such cases would be too strong. He could not be a witness for himself in the case; and cannot be admitted, under the guise of an amendment of his return as an officer, to make that evidence, which would be indispensable to the validity of his claim. The proposed amendment, therefore, must be adjudged inadmissible.

But the defendant has had the precaution to have his title confirmed, by a conveyance directly from the person, as whose the premises had been attempted to be acquired by a levy ; and must prevail unless the plaintiff can make out a superior title.

The plaintiff counts upon his own seizin ; and to maintain it he offers in evidence a levy upon the premises in question, purporting to have been made in his favor, as administrator of James Bartlett, of Dover, in the state of New Hampshire, who •was a creditor of the individual, as whose the grantor of the defendant had made the before named imperfect levy.. The defendant’s conveyance, however, was executed before this levy was made, but subsequently to the attachment on mesne process in the suit, which eventuated in a judgment, in satisfaction of which the plaintiff’s levy was made. To avoid the effect of this levy the defendant interposes sundry objections.

He insists, in the first place, that the plaintiff has no right to prosecute this action, as upon his own seizin, and a disseizin done to him ; but that he should have sued, if at all, in his representative character as administrator; and, to support this position, he relies upon a dictum merely, though of a very learned Judge, in the case of Williams v. Nason, 5 Mass. R. 240. The dictum is, “ If executors or administrators, who have caused an execution to be levied on lands, to satisfy a debt due to the deceased, are after disseized, they may recover the lands, declaring on their seizin, in the capacity in which they had obtained their judgment.”- It is not said, that they may not recover, declaring on their own seizin. There are numerous cases in which it is admissible for executors and administrators to declare either way ; either in their individual or representative capacities. All judgments recovered by executors and administrators may be declared upon either way. So if the personal property coming into their hands, in their representative capacity, be wrested from them, they may bring actions for it as individuals, or in their representative capacity. Crawford v. Whittal, in a note, Doug. 4; Talmage v. Chapel, 16 Mass. R. 71. And, by parity of reasoning, the same must be the case where executors and administrators are allowed to sue for and recover seizin of real estate. Upon a setting off to them by levy they become seized. Rev. St. c. 108, >§> 26. They become seized in trust; but whoever is seized in trust, is seized, so that actions for the injuries done to the trust estate may be brought in his name, without allusion to his representative capacity.

It is secondly contended, that there is evidence in the case, which shows, that the estate so acquired by the plaintiff, was not necessary for the payment of the debts of his intestate ; and, therefore, that he had not a right to bring any action, either personally or as administrator, to recover seizin of the premises. The evidence relied upon is the testimony of a witness, who heard the plaintiff hold language, from which such a fact was inferable ; and, therefore, it is contended, that the action should have been brought by the heirs of the deceased, and not by the administrator of his estate. But the proper evidence of such a fact is not the loose declarations of the administrator. It should, at least, appear from his final account settled in the probate office. Webber & al. v. Webber, 6 Greenl. 128. Till then it cannot be known conclusively, that real estate acquired by levy, at the suit of the administrator, will not be necessary for the payment of debts.

It is thirdly objected, that the plaintiff’s levy is void, because the debtor in'the execution was not suitably notified to choose one of the appraisers. The return of the officer is, “ that he appointed an appraiser for the within named debtor, Samuel Smith, he having neglected to choose an appraiser, although I gave him notice in writing to appear and choose an appraiser, at least twenty-four hours before the time of the levy.” This return, in this particular, must be taken to be true ; and we think the notice must be holden to be sufficient. The other debtors in the execution do not appear to have been interested in the premises; and the conveyance, which the defendant took, as before noticed, to confirm his title, was not from them, or either of them. The notice, therefore, was sufficient. The defendant, however, insists that the time and place, at which Smith was notified to appear for the purpose of choosing an appraiser, and also to attend to the levy, should appear by the return to have been designated. But the statute has not, in terms, prescribed that any thing of the kind shall expressly appear in the return, and we are not aware that any decision has ever held it to be necessary. Having returned that Smith neglected to choose an appraiser, we must understand, that the notice designated the purpose for which he was required to make the selection. The officer could not otherwise have returned that the debtor neglected to choose one. Notwithstanding the decision in Means v. Osgood, 7 Greenl. 146, may seem to be the other way, it has since, repeatedly, been held to be sufficient for the officer to return, that the debtor “ neglected,” or “neglected and refused” to choose an appraiser, without saying, in express terms, that he notified him to do so. Bugnon v. Howes, 13 Maine R. 154; Thompson v. Oakes & al. Ib. 407; Sturdevant v. Sweetser & al. 3 Fairf. 520; Blanchard v. Brooks, 12 Pick. 47. The courts in these cases have considered, that, when an officer so returned, his return would be false, unless he had duly given the debtor an opportunity to make the selection.

It is fourthly, objected, that the notice to choose an appraiser was given but once, although several different appraisements took place, of several different parcels of land and at several different times. The answer to this is, that we do not so understand the facts to appear. The officer’s return, in refer•ence to the'premises in question, admits of no such construction. His language is, as before quoted, in reference to this levy. How it may have been as to the others it is unnecessary to inquire ; as to this it is single and specific.

The fifth objection is predicated upon the supposition, that the levy was for a greater amount than was due on the execution for debt, costs, interest and charges for the levy. If this objection has any foundation it can only apply to the last of the levies made in satisfaction of the execution. At the time when the levy in question was made it did not satisfy the amount named in the execution, exclusive of interest and charges of levying the same; and, therefore, was unaffected by any miscalculation, if any there was, at the time when the last levy was made. Though the officer dates his concluding return on the second of August, the day on which the last levy was made, yet, referring to his former partial returns, made at the dates of the previous levies, he returns as to those, that they were made at their respective dates, and that the ap-praisements and delivery of possession, in part satisfaction, then took place. All previous to the last levy, therefore, must stand unaffected by any miscalculation as to the amount for which a levy was to be made, which took place at the time of • the last levy.

But the defendant’s calculation is based upon an erroneous principle: it is upon the supposition that the several levies should be considered as taking effect from the date of the first levy, which was on the twenty-seventh of July. The several levies, as the return shows, were distinct and separate; and, until the last, were in satisfaction pro tanto only, at their respective dates. The interest on the judgment and every part of it, remaining unsatisfied, should be calculated till the final satisfaction was accomplished. Calculating the interest upon this principle to the time of the first levy, and so on, upon the balances remaining, until final satisfaction, the balance finally satisfied may not have been materially greater than the law would sanction. But however this may be, as the execution was clearly not satisfied by the levy in question, this objection is not sustainable.

We come now to a question, which, but for the course taken by the defendant at the trial, if the fact was as supposed by him, that the plaintiff had never taken administration in this State, might have been availing to avoid the plaintiff’s levy. He. on that occasion, insisted that the plaintiff was bound to prove that, before the rendition of the judgment, upon which his levy depends for support, and when he was allowed to take upon himself the prosecution of the suit, which led to the judgment, he had been duly appointed administrator of his intestate’s estate in this State. This the Court very properly overruled. The presumption, prima facie is, that all judgments, rendered by courts of competent jurisdiction, are properly rendered, and upon due proceedings had preparatory thereto ; and between the parties thereto and privies are conclusive, unless fraudulently obtained. Between a party thereto and a stranger it is otherwise. Against the latter they are evidence only that such judgments were rendered upon due proceedings had therefor, and in support of proceedings had thereupon, as in the case of levies upon real estate to satisfy them, in which case they become a muniment of title. There are exceptions, however, to this general rule as to judgments inter alios, but they are not applicable to the case before us. But when a judgment is introduced collaterally, as a muniment of title, which was rendered inter alios, it is not conclusive upon the one not a party to it. It will be competent for him to show that it was unduly or irregularly obtained. Pond v. Makepeace & al. 2 Metc. 114; Downes v. Fuller, Ib. 135, and cases there cited. If the defendant, in the case before us, had put the question, as to the qualification of the plaintiff to take upon himself the prosecution of the suit, in which his judgment was rendered, in issue, and had presented proof that the plaintiff’s intestate had not resided in this State, and from the probate office in this county, where the premises levied upon were situate, and where the suit was pending, that the plaintiff had not been there appointed administrator, there being no evidence that the intestate had bona notabilia in any other county in this State, the burthen of proof would have been shifted, so that if, thereupon, the plaintiff had not shown, that he had duly taken administration in this State, his judgment, as it respected the rights of the defendant, would have been rendered nugatory. As the case presented stands, however, according to the agreement of the parties, judgment should be entered upon the default.