Bell v. Roberts

The opinion of the court was delivered by Collamer, J. This is an action against an officer for an insufficient levy of an execution on land, the return not stating that the justice, who appointed the appraisers, was one who could judge between the parties. The first question is, -does the statute of 1837 include such defect. The statute of 1837 relates to levies “ irregular, informal, or not made according to the strict rules of law, so that the title shall he deemed doubtful or uncertain.” This would not, probably, include a levy defective, in substance, as to the subject matter; as a levy on the wrong land, or a levy by metes and bounds on a part of the undivided interest of a tenant in common, or a levy on land instead of the equity of redemption, or the rents and profits. But the statute includes all matters of form, and it will not do to say that if the matter be such as, by the decisions of our courts, would render the levy defective without the statute, then it is not within it, because it is not doubtful or uncertain. So to hold would render the statute useless; for if it was matter which would not avoid the levy, it required no statute, but was well enough already. The defect in this levy related entirely to the mode and form, and not to the subject matter, and is clearly within the statute of 1837. The statute, in terms, includes all levies previously made, and gives two years for proceedings in relation thereto, and quiets them thereafter. Was that unconstitutional 1 Statutes which regulate the forms, modes and times of remedies, do not violate the obligation of contracts, and are not unconstitutional, though they are retrospective in their operation. Existing demands, claims and rights are constantly subject to the operation of new statutes, regulating the jurisdiction of courts, [586] and changing the time and form of process and proceeding. Such is the character and effect of this statute. Before this act, the only mode of testing the regularity of a levy was by an action of ejectment, which might be brought within fifteen years. By this act the proceeding is to be by petition and to be commenced within two years. It disturbs no vested rights, and impairs the obligation of no contract. By the statute of 1837, the plaintiff’s title became quieted in January, 1840, which was after the commencement of his present action. Did that constitute a defence ? The duty of the officer to make a regular and sufficient levy and return, is the same as before the statute. The action accrues against the sheriff immediately on the breach of that duty, and the plaintiff was entitled to recover whatever damages he suffered therefrom. Hall v. Tomlinson, 3 Vt. R. 228. Under the old law, the plaintiff would commonly recover the amount of the debt or land, which was usually lost by the defective levy. Under the present statute, the creditor must be at the expense of taking proceedings in court to correct the levy, or he must lay out of the use of the land two years, that his title may become quieted ; as he cannot successfully assert his title, by ejectment, until his title has become perfected by one of those courses. The neglect of the officer then is not, even under the operation of the statute of 1837, damnum absque injuria. The cause should have gone to the jury to assess the damages. Judgment reversed.