Dwinel v. Soper

Shepley, C. J. The title of the demandant depends upon the validity of a levy made upon the premises. The objections to it are: — 1. That reasonable notice was not given to the debtors to choose an appraiser. The return made by the officer states the facts respecting the notice, and that it was a reasonable one. The statute, chap. 94, sect. 5, requires, that a debtor should-be allowed a reasonable specified time within which to appoint an appraiser. The return states, that one of the debtors resided upon the premises, and the other within half a mile of them. That he left written notices at their respective dwelling-houses, at ten of the clock in the forenoon, to choose an appraiser, to make the appraisement at five of the clock in the afternoon of the same day. If the return of the officer were not conclusive, the court could not decide, that there was not a reasonable time allowed. 2. The second objection is, that the -share of each debtor in the common estate was not appraised separately. There is nothing in the levy, which could have the effect to change the character of the estate, when redeemed. Both portions of the estate being united in the creditor, the tenancy in common would cease, when it was not redeemed. Equal shares of a common estate must of necessity be of equal value. 3. The third objection is, that the value of the estate exceeded by the sum of one cent and thee mills the amount of the debt, costs and fees. In the case of Boyden v. Moore, 5 Mass. 365, it was said, “ if any sum large enough to be discharged in the current coin of the country is a trifle,” “ it will be difficult to draw a line, and say how large a sum must be, not to be a trifle.” This was said in a course of reasoning to show that forty-one cents could not be disregarded as a trifle. And in the same case it is said, that a verdict would not be set aside to relieve a party against an error of forty cents, and this term appears to havo [122] been used to designate the error before named, of forty-one cents. In the case of Huse v. Merriam, 2 Greenl. 375, the taxes assessed exceeded by eighty-seven cents the amount authorized by law, and the decision was, that the excess did not fall within the maxim de minimis non curat lex. The case of Boy den v. Moore was referred to with approbation. In the case of Huntington v. Winchell, 8 Conn. 45, the title depended upon the validity of levies made to satisfy two executions. The value of the estate exceeded the amount to be paid, in one, ten cents, and in the other, seventeen cents. The maxim was considered to be applicable to these sums, and the levies were held to be valid. In the case of Spencer v. Champion, 9 Conn. 537, the value exceeded by fourteen cents the amount to be paid, and the levy was sustained. In the case of Pickett v. Breckenridge, 22 Pick. 297, the value of the estate exceeded by thee dollars the amount to be paid, and it was decided to be invalid. An amount, which cannot be paid in any legally current coin of the country, must of course be disregarded. A' literal application of the maxim would authorize the court to disregard also in the estimate of value one of the least of the current coins. Tenant defaulted.