Swift v. Dean

The opinion of the court was delivered by Redeield, J. In this case the plaintiff relied upon the levy of an execudon in favor of Noah Smith v. Dunton & Fenton as the basis of his title to the premises sued for.— That levy was, by the court below, decided to be wholly vbid, and there is no doubt the decision was sound. The levy of an execution upon-the equity of redemption in mortgaged premises, if upon any portion less than the whole, must be upon an aliquot proportion of the whole, and not upon a part described by metes and bounds. Collins v. Gibson, 5 Vt. R. 243 Smith v. Benson, 9 Vt. R. 138. Such levy is absolutely void. It is questionable whether such a defect would be cured by either of the statutes in this state in relation to defective levies upon real estate. It is quite certain that neither of these statutes can affect the present case. The statute of 1835 cures defects in those cases only where the creditor is in possession of the land levied upon, which is not the present case,' and that of 1837 will not aid the plaintiff, because the term of two years from the passing of the act had not expired at the time of the trial in the court below. The saíne is true of the other objection to this levy. The amount of the mortgages is no where stated in the levy.— This is expressly required by statute, and would seem to be an indispensable prerequisite to the passing of the title. The levy being rejected, the other testimony, by which the plaintiff attempted to show that the defendants had acknowledged themselves tenants under him, as it had express reference to his title under the levy, should also have been rejected. For it will hardly be allowed, when the' debtor has a tenant in possession of land upon which ^his creditor levies, and the tenant promises to pay rent to the creditor upon condition of his having obtained the title to the land, that, when the levy proves void, the creditor may still put out the tenant of the debtor upon the force of this acknowledgment of tenancy. This would be extending the doctrine of tenants’ estoppel [326] > from denying the landlord’s title to a fraudulent, and almost to a ludicrous extent. It has long been settled, that where ' the landlord’s title has expired, the tenant may, on that ground, defend in ejectment. I take it the reason of that rule is, that the tenant’s obligation is thereby transferred to the real owner of the land, and it becomes indispensable to the right, of all concerned, that the former landlord should not interpose between the tenant and his rightful landlord. The same reason applies with greater force to the present case.— 2 Stark. Ev. 533, and notes. England v. Slade, 6 Term R. 682. Doe, ex dem. of Jackson v. Ramsbotham, 3 M. & S. R. 516, reported in 12 Petersdorff, 37. The case is still stronger where the tenancy has been acknowledged, or rent paid under mutual misapprehension, or, what is sometimes the case, misrepresentation of the landlord’s title. In such cases,it has been decided that the tenant is not estopped to show the facts in his defence. Rogers v. Pitcher, 1 Marsh’s R. 541, abridged in 12 Petersdorff, 38, reported also in 1 Com. Law R. 355. The last case was very similar to the one under consideration, The plaintiff, then, made out no case against the defendants, and the county court should have directed a verdict against him. It therefore becomes unnecessary to consider the other parts of the case. Judgment affirmed.