Banton v. Griswold

Emery, J. This is an action by one co-tenant against another co-tenant in common and undivided of the north half of Township Numbered Two, Range Eight, W. E. L. S. to recover the plaintiff’s share of stumpage money collected by the defendant from the common land. It is admitted that the plaintiff shows a prima facie title to sixty-one one hundred and ninety-second pai’ts (61-192) of the land, except as the title may have been lost to predecessors of the plaintiff (1) by a forfeiture of the whole for the non-payment of State taxes, and (2) by the loss of twenty-seven one hundred and ninety seconds (27-192) by a levy of execution against William Redington in 1840. The published opinion in Millett v. Mullen, ante p. 400, overrules the first objection to the plaintiff’s title, since as to that question the material facts are substantially the same in the two cases. The only remaining question, therefore, is the validity of the levy of execution above referred to. In June, 1840, the State «of Maine recovered in the Supreme Judicial Court, for Kennebec county, a money judgment against William Redington and Alfred Redington. Execution was issued upon this judgment and the State sought to levy it by extent upon [448] the interest of the judgment debtors in the north half of the township in question, and to cause their interest to be set out to the State by metes and bounds. The plaintiff contends that such mode of levying execution upon real estate was not open to the State, but only to persons or corporations created by the State,— and that the State could only levy by sale upon execution. The statute governing the matter is that of 1821, ch. 60, “An act respecting the attachment of property on mesne process, and directing the issuing, extending and serving of executions.” By § 27, it was enacted, “That when any person shall obtain judgment in any court within this State for any sum of money, and shall think proper to levy his execution upon the debtor’s real estate then ” — he shall cause it to be done by appraisal and extent. By section 33 of the same chapter it was enacted, “ That upon any judgment in any court of law in this State, in the name or for the benefit of this State, for any sum of money, a writ of execution in common form shall issue, and be directed to the proper officer, and the lands of such judgment debtor may be taken on such execution and sold at public vendue to the highest bidder.” The plaintiff contends that the State was confined to this latter mode of levying. The defendant contends that the State could use this mode or could use the mode provided for a “person ” in section 27, at its option. Arguments may be made upon both sides of the question whether the word “ person” in section 27, fairly includes the State itself. “ The decisions upon this question are not easily reconciled, but the better opinion seems to be that tbe word ‘ person ’ does not in its ordinary or legal signification, embrace the state or government.” 18 Am. & Eng. Ency. of Law, 404, note 2. Argument may also be made either way as to the force of the word “may” in § 33. Is it wholly permissive in the sense that the state may use the mode there described, or may use the other mode provided for persons in § 27 at its option? Or is it permissive in the more limited sense that the state may or may not levy at all, but mandatory as to the mode, if it elects to levy ? It is familiar learning that the use of the word “ may” for “shall” is common, and that the word “may” is sometimes to be construed as mandatory. [449] The right of a judgment creditor to levy his execution upon the land of his debtor is purely statutory and hence is limited to the words, or necessary import, of the statute. Upon reading the whole of chapter 60 (Laws of 1821) and considering that it was enacted as a whole at the same time, we are clear that the legislature did not intend that the state, on becoming a judgment creditor, should levy upon the lands of its debtor by extent. The State was not then, no more than now, a business corporation except incidentally as necessary to further its political purposes. It was not in its organization or machinery adapted to acquire, own, cultivate, manage or make a profit out of lands, except for public use. It needed its revenues and debts due it to be paid in money. Lands set out to it upon appraisal and extent, when not needed for public use, were of no value to the State except to sell. Indeed, it had never been the policy of preceding governments to acquire and hold land as a private owner. The policy had always been to have the lands not needed for public use parcelled out among individuals, as fast as they could be surveyed and sold. Again, the statute (chap. 60) made careful provision for a redemption from the levy by the debtor as a matter of right. It required (§ 30) an accounting by the execution creditor for the rents, profits and improvements accrued or made since the levy. It then provided for an adjudication by three justices of the peace, as to the amount which should be paid or tendered for redemption. Upon such payment or tender, the execution creditor was required to execute a good and lawful deed of release to the debtor of the land so taken in execution. If such execution creditor refused to execute such a deed, the debtor was given the right to bring his action of ejectment against the creditor and recover the title and possession of the land. This procedure for redemption clearly was not applicable against the State. It will not be contended that by § 30, the State was compelled to render an account, — that it was compelled to submit its claims to three justices of the peace,-— that it was compelled to execute a deed of release, — and finally [450] that it could be sued in an action of ejectment and evicted by a sheriff. Certainly, in the absence of express words most explicitly requiring it, the court cannot hold that the legislature intended to subject the sovereign state to such liabilities. Legislative acts do not bind the State unless the State be expressly named as to be bound. . Cape Elizabeth v. Skillin, 79 Maine, 493. On the other hand, the legislature in the same act, in § 33, provided a mode for a levy of execution in behalf of the State which did not subject it to the requirements of § 30 for redemption. The State was authorized to levy by seizure and sale at public vendue to the highest bidder. The officer thus levying the execution was required to execute to the purchaser a good deed of any lands so sold by him. The State was thus relieved of all duties and liabilities to the debtor. He could not proceed against the State, but could proceed against the purchaser with the same rights and in the same way as against any individual creditor, for such right was expressly saved to him by the § 33. Upon consideration of the whole statute it must be evident that a judgment debtor of the State would be seriously handicapped in the exercise of his right of redemption, if not entirely cut off from it, should the State assume to have the land itself set out by metes ' and bounds or by assignment, and itself take the rents and profits. The provision for a levy by sale when the State was the execution creditor relieved the debtor of that difficulty, and left him for to deal with the purchaser on an equal footing. It follows, we think, that the legislature intended the State to follow that course and not the course which was followed, viz, that of levying by extent. The levy was therefore void as unauthorized, and did not affect the title of William Hedington. No other objections are made to the plaintiff’s prima facie title to 61-192; hence the mandate must be, Judgment for the plaintiff for sixty-oné one hundred and ninety-seconds {61-19B') of the sums collected by the defendant from the land described in the writ. The amount to be determined at nisiprius.