Russell v. Dyer

40 N.H. 173

Opinion

Bell, C. J.*

This case was very carefully investigated by the late Justice Sawyer, to whose labors I am indebted for most of the views presented. In some other respects his opinion has been modified.

In Russell v.. Fabyan, 34 N. H. 218, it was held that the sale of the light of redemption, on Dyer’s second judgment, did' not exclude the plaintiff, as assignee of Burn-ham, from the right to redeem the premises from the extent under the first judgment, notwithstanding the sale might be held to pass the title, as against the prior deed from Burnham to the plaintiff', because of the fraudulent character of that deed as to creditors. It was, therefore, held that the tender by the plaintiff to Dyer extinguished the title acquired by the extent under the first judgment. If, at the time of the destruction of the buildings, Dyer was the owner, it must have been under the sale of the right of redemption on his second judgment. The return is of a sale of the right to redeem the premises from the levy of an execution in favor of Dyer against Burnham, for the sum of $4,979.11. In these particulars the extent under the first judgment is correctly described, but the return erroneously sets forth that the levy was made on the 12th instead of the 14th of June. This error is immaterial, as sufficient appears upon the return to make it certain that this is the levy referred to ; and if it were not so, it does not appear that any other lien or incumbrance subsisted upon tbe property, out of which a right of redemption could arise.

Various exceptions are taken to the sale, some of which are founded upon the nature of the right of redemption sold, as one arising from the extent, and others are based upon the alleged want of proper notice of the sale. It will be necessary, for the decision of the cause, to examine those only of the latter class. The objections taken to the legality of the extent under the first judgment may be disregarded in the consideration of the case, as it may be assumed that the extent under the first judgment was valid, so far as to raise a right of redemption, which passed by the sale under the second judgment, provided that is found to have been conducted with all formalities required by law, and if the defendant can maintain the sale against the objections which arise from want of proper notice of it, he has title to the premises. On the other hand,’if he fails to maintain that sale as legal, because of the want of proper notice, he fails to make out that he was the owner of the premises at the time of the loss of the buildings, and all other questions presented by the case become immaterial.

The statute, under the authority of which the sale was made, requires notice of the time and place of sale to be given to the debtor, or left at his usual place of abode, if he resides in the county, or within twenty miles of the property; and if not, to be published in some newspaper printed in the vicinity, and also a like notice to be posted up at two of the most public places in the town in which the property is situated. K,ev. Stat., ch. 196, secs. 2, 3.

No doctrine, perhaps, has received more universal assent than that in disposing of a debtor’s lands by compulsory proceedings under a statute for the payment of his debts, the course prescribed is to be strictly followed. A failure to comply with any of the substantial requirements of the statute renders the proceedings void, and leaves his title to the land unaffected. Whittier v. Varney, 10 N. H. 296; Williams v. Amory, 14 Mass. 20; Benson v. Smith, 42 Me. 414.

In a matter so essential to the fairness and regularity of a sale at public auction as proper notice of it, any construction, which would dispense in any case with the statutory provision requiring it, is clearly inadmissible. Nor can any other than the statute notice be substituted for it. The legislature having declared what notice shall be given, have made this essential. The debtor, and all others interested in the proceedings, may be supposed to look for the notices of the sale, at the places and in the mode specified by the statute; and they can have no reason to understand, in the absence of any statute provision to that effect, that if places, such as are designated by the statute do not exist, or the mode of publication required by it is impracticable, similar places, in some adjoining town, or in the shire town of the county, or some other mode of publication, as near as may be, may be selected, at the pleasure of the officer, and substituted for those designated. If proceedings of this essential character cannot be had in conformity to the statute, in reference to lands situated in unincorporated or uninhabited places, then it must be understood that the legislature did not intend to subject them to the operation of the act, and the authority under the statute to sell a debtor’s right of redemption does not extend to lands so situated.

The word “ town,” as used in the statute on this subject, in accordance with the rule of construction prescribed in the Kevised Statutes (ch. 1, sec. 4), may be held to mean a place, the inhabitants of which are required to pay a tax. It can admit of no doubt that an unincorporated place, like Nash & Sawyer’s Location, as it was at the time of the sale, having inhabitants and established territorial limits, corresponding in extent to the general territorial character of towns, and included among towns in the gen eral law for the apportionment of the public taxes, and required by that law to pay its share of the State tax, must be a place, the inhabitants of which are required to pay a tax, within the meaning of the section establishing this rule of construction, and therefore to be considered a town, within the meaning of the act prescribing the mode of proceeding in the sale of an equity or right of redemption on execution. Both Nash & Sawyer’s Location and Crawford’s Purchase have always been included in the apportionment acts, since 1840 at least. They have established and recognized boundaries, and in the extent of territory which they embrace they have the general character of towns. The former, at the time of this sale, had inhabitants, and however Crawford’s Purchase may be viewed on this point, Nash & Sawyer’s Location may be considered as included in the meaning of a statute which speaks of towns, equally with all other unincorporated but inhabited places, unless upon some other ground it appears that it cannot be so included, because the nature and subject matter of the act, or its particular provisions, are inconsistent with such a construction.

The statute which prescribes the proceedings to be had in the sale of an equity of redemption, in declaring that notices of the sale shall be posted in two of the most public places of the town in which the land is situated, must be held to have application to this sale ; and if the provisions of the act are found to be inconsistent with the application of the statute to the sale of an equity in lands situated in such place, and any essential requirement of the statute cannot be complied with in the sale of such equity, it cannot be dispensed with, nor the sale held valid; and because the essential requirement of the statute cannot be met in such case, it must be considered that, therefore, the legislature did not intend to include such case within the statute authority for the sale, and consequently it must be held void, as one not authorized by law.

IJpon this point, it has been urged in the argument, that Nash & Sawyer’s Location, at the time of giving notice of the sale, had but one public place, within the meaning of the statute, at which the notice could be posted, and being posted there, this was a substantial compliance with the requirements of the statute, that ample notice of the sale was thereby given to the inhabitants of the place, and the object of the statute accomplished.

If the expression used in the act, “ the ’ most public places,” is to be considered as having a legal, technical signification, implying a building appropriated to some particular use or purpose, which in law renders it a public place, when, if appropriated to some different use, it would not in law be so regarded; a meaning such that, whether it is or is not a public place, is purely a question of law, to be determined from its nature and use, then it is clear that there may be land subject to an equity of redemption, situated in a place the inhabitants of which are required to pay a tax, and even in an incorporated town, which has in it no public place in this legal, technical sense, where notice of the sale can be posted agreeably to the requirements of the statute.

If, however, the expression is used not in this technical sense, but as meaning only that notices shall be posted in two places which are most open to public observation, and where they would be most likely to attract attention — a question of fact only being involved, whenever inquiry is made, whether they were posted in the most public places —then it is equally clear that in every town or place, inhabited or uninhabited, which, upon any view of the statute, may be called a town, two such places may be found ; two of the places most open to public observation in the town, and best situated as places for posting the notices to give public information of the sale.

Neither of these views are regarded by the court as correct. In Tidd v. Smith, 3 N. H. 178, the question arose, what was a public place within the meaning of the act for taxing non-resident lands, which provided that notice of sale should be posted for three weeks in some public place in the town. The notice was posted in a house, then, and for some days afterward, kept as a public inn, and from that time used only as a shoemaker’s shop. It was there held that the question, whether a particular place is to be considered a public place -within the meaning of the statute, is a question partly of fact and partly of law. The nature and situation of the places, and the uses to which they are applied, are matters of fact, to be settled by a jury. But when these are settled, whether the place is to be considered a public place within the intent of the statute, is purely a question of law. And the facts being of common knowledge to every body, the court were of opinion that a shoemaker’s shop, under the circumstances of that case, could not be deemed a public place within the meaning of that statute. The question there arose in the town of Deerfield, one of the oldest incorporated towns, having as early as 1800 a population of nearly 2000, and situated in a densely peopled portion of the State, and having in 1823, two years before this decision, two meeting-houses, eight taverns, six stores and two post-offices. Farmer & Moore’s Gazetteer 50 ; N. H. Register 1823.

In towns and places where no post-office, tavern, house of public worship, or other place usually regarded as a public place, exists, the words “ public place” must be construed to mean such places, as, in comparison with other places in the same town, are the places where the inhabitants and others most frequently meet, or resort, or have occasion to be, so that a notice posted there would for that reason be likely to meet public view and attract observation. The intention of the statute, which requires notices to be posted, is obviously to give publicity to the sale, and to invite purchasers. The tavern, retail store, house of worship, or other place usually regarded as public, are considered such because applied to purposes which make them places of public resort, and they thereby become most open to public observation. In cities and large towns, some taverns and retail stoi’es, like most mechanics’ shops, may he of little or no public resort, and some houses of worship may be very retired, or so inclosed as to be inaccessible, except when opened for public use, and such buildings could, in no proper sense, be regarded as public, while other buildings designed for public use, as post-offices, railroad depots and the like, might become the places of most common resort.

In new and thinly settled towns and places, there may be neither post-office, church, tavern, or store; and the school-house, mill, or mechanic’s shop may be the places of most public resold, and may be properly regarded as the most public places. And the same remark may, under proper circumstances, apply to the bridge, or the guide-hoard, or the box by the road-side, where newspapers are left for subscribers, and to posts and boards erected by public authority for posting notices, where the evidence shows that no more public places can be found.

The return of the officer of the sale on execution is conclusive as to all his proceedings material and proper to be returned, and upon which the title under the sale is dependent; and where he distinctly returns that the notices were posted at certain described places, being two of the most public places, the return could not be impeached to invalidate the sale.

As then it appears that part of the lands, the right to redeem which was sold, were situated in a town where there was hut one public place, and notice was posted in hut one place, and another part was situate in a place not incorporated nor inhabited, the statute must be held inoperative as to those places, and the levy and sale void.

It was argued that though the sale might be void under the statute, still it could be upheld by virtue of the statute of 2 Geo. U., referred to and commented upon in Pritchard v. Brown. It is sufficient on this point to say, that the act provides only for extending executions upon the lands of debtors in the provinces, in the same manner as real estate was liable by the law of England to be taken in satisfaction of debts due by bond or other specialty, and no where speaks of sales of the land or of the right in equity to redeem it.

It was also contended that the plaintiff, being a fraudulent grantee of the debtor as to his creditors, is not in a position to except to the validity of the proceedings in this case. The doctrine that one who takes by a deed, fraudulent as to the creditors of his grantor, cannot except to the validity of a creditor’s extent upon the land, has never been admitted in this State; Whittier v. Varney, ION. H. 291; nor does it follow upon principle from the doctrine that the creditor of the grantor may treat the land as belonging to his debtor notwithstanding such fraudulent conveyance. lie may extend upon the land, or levy upon the equity of redemption, precisely as though the fraudulent conveyance had not been made. But if his extent or levy is void, by reason of a failure to comply with the requirements of the statute, he acquires no rights as against the grantee under the fraudulent conveyance which he would not have acquired by the defective extent or levy against the debtor, if the fraudulent conveyance had never been made. Whenever, in order to make out his title to the land, he introduces his levy, he fails, if that appears to be defective, whoever may be the adverse party. The debtor himself may object, and the fraudulent grantee, having his interest, stands in no worse position in this respect, because he has taken a conveyance which his grantor’s creditors may disregard.

"Upon these views the sale of the equity on Dyer’s second judgment must be held void, and this conclusion renders it unnecessary to consider the other questions in the case.

Verdict set aside and new trial granted.

Footnotes

*

Juclges Bellows and Bowlee did not sit.