Gilman v. Stetson

[126] The opinion of the Court was drawn up by Weston C. J. The return of the officer, who caused the levy to be made on the execution, which issued on the judgment, French v. Lapish, that two of the appraisers named were chosen by the creditor, there is much reason to believe must have been made by mistake. The officer could not but know that the creditor was not authorized to choose two of the appraisers. The petitioner has not connected himself with the title of Lapish, nor does it appear that the title of any third party claiming under him, is to be affected. And we are of opinion, that it would not be an improper exercise of discretion on the part of the Court, to allow the proposed amendment to be made ; and it is accordingly allowed. The affirmative is on the petitioner to show, that he has an interest in the estate, of which he prays partition. He derives title from Nathaniel Harlow. The petitioner has however been unable to sustain that title at law. It appears, that the title of Stetson, La-pish and French, derived from the commonwealth of Massachusetts, has prevailed in the Circuit Court of the United Stutes, and in this Court, by direct adjudications against the petitioner, the whole of which, taken together, cover the entire property in controversy. The judgments in favor of Stetson and French, have been consummated by actual entry, which is sufficient, even without writs of possession. McNeal v. Bright & al., 4 Mass. R. 300. And the title of the respondent to three quarters under these judgments, is not controverted, the petitioner claiming to be seized only of one fourth. After the judgment in favor of Lapish, the right of the petitioner must depend on the fact, that the increased value of the premises, demanded by Lapish, found by the jury in favor of the petitioner, has not been paid, either by Lapish, or any one claiming under him. The demandant did not elect to abandon the premises to the petitioner, and could not therefore entitle himself to a writ of possession, unless he had paid within one year from the rendition of judgment, the sum awarded to the petitioner. Stat. of 1821, c. 47, sec. 1. Nor could he without violating the same statute, maintain a new action for the premises. And we think it is deducible, by fair implication, that the demandant could not lawfully enter, without such payment. Nor does it appear to us that this implica [127] tion is removed by the remedy afforded by the statute of 1821, c. 62, sec. 5, which has reference manifestly to an entry, without judgment of law. The balance due the petitioner over the amount of the bill of cost, recovered by Impish against him, was short of ten dollars; and it would seem, from the testimony of Mr. McGaw, that the petitioner abandoned and gave up the premises, leaving the small balance to be liquidated by French, who had the title of Lapish, upon the assurance of McGaiv, that French would pay it. If such is the fact, the petitioner waived his right to retain the premises, for the non-payment of the increased value, and surrendered it up, upon the judgment against him. But this fact is controverted; and some opposing testimony was introduced at the trial. It does not appear, that the jury have passed upon this fact, which is a question peculiarly for them; and we set aside the verdict, and grant a new trial, that it may be settled. As to the title of the respondent to the part in controversy, the decision of this cause does not require, that it should be determined, if the petitioner has failed to prove any remaining interest in himself. We are of opinion however, that whatever right French had, passed to the respondent, under the sale made by the administrator. That was made in virtue of a license duly obtained. It would not have the effect to deprive the petitioner of any right, resulting to him from the failure of payment of the increased value avrarded to him, which is left in full force, the sale notwithstanding. But if the petitioner has waived, abandoned and surrendered that right, we are aware of no reason, why he should be received to question the regularity of that sale, to which he was a stranger.