Fisher v. Kean

The opinion of the Court was delivered by Huston, J. All parties seem to agree that the verdict and the proper judgment on it, and the executions and- salé remain undisturbed. We are of opinion, that in this case the writ of error lies; for although appeal is the appropiate remedy for mistake in the distribution of money raised by sheriff’s sale, it is not the distribution of the money which is complained of. The execution is not brought up by this writ of error; but it' is not the execution which the plaintiff in error wishes to reach; he complains of that part of the decree which directs Ridgway’s mortgage and judgment to be assigned to the plaintiff, and to remain a lien on all the estate of G. Fisher, which considers the sum of 1401 dollars and 67 cents as found for the plaihtifij and nothing to do but issue an execution for it on the widow’s death. The act of assembly had made that sum a lien on the specific tract appraised and no other. The jury and court could not remove it from that, nor could they in this case extend it beyond that. It is not due until the widow’s death; and neither verdict nor judgment can be for a sum not yet due. And I apprehend the fair construction of the verdict, so far from finding it due, finds the very reverse. Let üs attend to the case. The plaintiff claimed nearly 5000 dollars. The defendant, among other objections to this claim, showed that on the land sold to him there was a specific lien by positive law for the widow’s third part of the sum at which that tract had been valued, amounting to 1401 dollars and 67 cents; and further, that from 1813 he had been charged with 'the interest on that sum, which had been paid, or if any part of it remained unpaid, it could be collected by distress or action against him, The jury then deducted this sum of 1401 dollars and 67 cents from the amount of the plaintiff’s demand, as it stood in 1813, or what amounted to the same thing, and found a verdict for plaintiff for 1875 dollars and 60 cents- If the jury had stopped here, and given no explanation, it might have been contended that the last sum was all that they allowed for the whole of the plaintiff’s claim; and possibly might have barred the plaintiff from ever recovering any thing further. To prevent this, they, in substance, say, We find 1875 dollars and 60 cents, and leave 1401 dollars and 67 cents not taken into our verdict, being the widow’s third part, which is charged on the land by the law; and say in substance, for no other legal meaning can be put on the words, “ which is to remain in the hands of G. Fisher, during the life of the widow, &c.” The direction that it should be secured by remaining a lien on. the land, amounted to nothing; the law had placed it there and made it a lien beyond the control of courts and juries, until the widow died or released it. Courts will always so mould and construe a verdict as to make it legal if possible, and never put a construction otherwise, if the words will bear it. It is not only allowable, but proper, and often necessary to justice, that a [262] jury should, beside finding the issue, state the ground on which they decided. 1 Peters's C. C. Rep. 72. After finding the issue, the verdict is not vitiated by finding or stating something superfluous. 8 Serg. & Rawle 441. Such finding and stating what they did not take into view occurs constantly in trials ; and if the jury find all the plaintiff is then entitled to, neither he nor the defendant has any cause of complaint. The only judgment, then, which could be entered on this verdict, was for 1875 dollars and 60 cents. Two judgments, on the same demand, one to be levied presently, and the other in future, and contingent, are, perhaps, not allowable; though a verdict for a sum, and stay of execution till an act be done, is, in our equitable proceedings, not unusual. The sum of 1401 dollars 67 cents, raised by the sale of the defendant’s land, on which that was not a charge, went, without dispute, towards payment of a lien which bound the property sold; and it went so because the plaintiff had no claim to it. If the tract on which 1401 dollars and 67 cents was charged, had .been levied on and sold, it must have been subject to the payment of the interest of this sum, yearly, to the widow; for that is a kind of lien from which land cannot be discharged by sheriff’s sale; unless where it is sold on a judgment or mortgage, prior to the widow’s claim. We think there is error in that part of the decree which-directs “the judgment and mortgage of Jacob Ridgway, as far as 1401 dollars and 67 cents, to remain a lien in favour of the assignees of John Kean, in this suit, as a security to them pro tanto -; and that the said mortgage and judgment be assigned accordingly.” It is true, that the report of arbitrators, prior to Ridgway's mortgage and judgment, gave the plaintiff in this cause a lien prior to Ridgway's; but it is also true that this verdict settles the amount of that lien to be 1875 dollars and 60 cents. The plaintiff, however, need not be alarmed: if Jacob Ridgway should proceed to sell the property on which this 1401 dollars and 67 cents is charged, he must sell subject to this lien ; the purchaser must take subject to it; and must pay the interest to the widow, during her life, and at her death pay the principal to the heirs of John Hamilton, or their assignees; and, it seems, the plaintiffs are such assignees. They have, then, a lien for this sum prior to Mr Ridgway's, and better, and which must become effectual, though many years may elapse first. We, then, order judgment on the verdict for 1875 dollars and 60 cents ; and the residue of the verdict is merely explanatory of the principles on which the jury founded their verdict ; and the sum of 1401 dollars and 67 cents is no otherwise affected by the verdict, than to show that it was not included in this finding, and remains as the law placed it.