Stanton v. Bannister

Afterwards, during the term, the following opinion of the Court was delivered by .. . ¡ Hutchinson, J. The Court consider the copies of the probate record of the division of J2. Mann’s estate, offered by the plaintiff and objected to by the defendant, to have been correctly admit [469] ted. They were sufficient for the purpose for which they werel offered. Had it been a recent transaction, and depended wholly upon the report of the committee accepted by the probate court, it would have been deficient, without something to show the previous steps, as contended by the defendant’s counsel. In like manner, the written agreement of the heirs, without seal, and without recording in the town clerk’s office, would have been deficient of itself to show a division, as against any person, who had a right to contest the division. But this agreement, such as it was, was completed in the year 1811. It was attached to the division reported by the committee ; refers to and confirms it, as a division of said real estate among the heirs, and was recorded with it in the probate office. This is good and operative asa confirmation of that division in fact, made in the probate office. This agreement was probably substituted for the very matters, the absence of which is now urged as defects in the division ; and it must be considered as a waiver of those defects now urged,and which might then have been supplied,if not thus waived. But the plaintiff was under no necessity even for this. He claims the right of Bannister, and, if his levy is good and sufficient throughout, he has acquired all the title of Bannister : whether that would be a good title, or not, as against the other heirs, is no interest to Bannister. It forms a good title against him ; and that is sufficient for the plaintiff. This brings us to the question of the levy; and the case, as now amended, presents that question. On inspection of the officer’s return of the levy, it appears, that the plaintiff chose one of the appraisers, and the plaintiff’s attorney applied to a justice of tN peace, who appointed the other two appraisers. It does not appear that Bannister, the debtor in the execution, had any notice to appoint any appraiser, or to join, in agreeing upon appraisers, nor, that he neglected or refused to appoint appraisers. Indeed, he could not be said to neglect, till thus notified or called upon for that purpose. This is'so essential a provision of the statute, so essential to the rights of the execution debtor, that it must not be dispensed with. By reason of this defect, the execution and levy give no title to the plaintiff If the plaintiff would perfect any title to the premises under his judgement, he needs to sue out a scire facias, in order to obtain another execution, and proceed regularly in the levy of the same. There remains jmt another question to be decided. Is this .objection to the levy waived by not being taken in season ? The defendant might have objected to the reading of this copy of the record of the levy to the jury, and then raised the question of its [470] But, the objection not being to the authentication of J . J ° .... the record, but to its want or intrinsic validity, the objection is not waived by letting it pass to the jury. The same question might be raised on argument to the court, upon the subject of what ought to be the charge to the jury. U. M. Robinson and D. Robinson, jr. for defendant. Pierpoint Isham, for the plaintiff’. It would seem, by the original bill of exceptions, that the defendant’s counsel, at some period, requested the county court to instruct the jury that the levy was void, unless the record showed a compliance with the statute. The original case closes, without showing that the court gave any such instructions upon this point, as the defendant might legally claim, if he asserted his claim in due season. The amendment of the case assigns a reason for this, to wit: that the request was not made by the defendant’s counsel, till after the court had submitted the cause to the jury. This was not in due season to suggest an entire new question, on which the whole cause might turn ; and it was not error in the court, to leave the question as they did, at that stage of the trial. It would not be justice to the plaintiff, for this court to treat that as error, and reverse the judgement; and thereby subject the plaintiff to the loss and payment of costs, during a period of controversy, that might have been prevented by raising this objection during the argument, and before the cause was submitted to the jury. We are unwilling to have the cause come to a crisis, without a decision upon its real merits; and as there appears to have been some mistake or oversight, on the trial, and the counsel are not now agreed as to the facts that transpired at the trial, with regard to this levy, we are disposed to let the cause rest for the present, with leave to the defendant to file a motion before this court for a new trial, on the ground of the surprise, of which he seems disposed to complain. If such a motion is filed, there may be affidavits on both sides, and, possibly, a new trial may be granted on such terms, as will do ample justice with regard to back costs, and not let the whole merits of the defence be sacrificed, through any mistake • of counsel, or any misrecollection of the exact order of time, in which the several objections were urged. Upon this suggestion from the court, the defendant filed his motion for a new trial; and both parties filed affidavits relative to the question ; and, upon a hearing, a new trial was granted, on terms, that the defendant take no cost for this term, nor for the last term in the county court, should he finally recover.