Benjamin v. Hathaway

Hosmer, Ch. J. The plaintiffs claimed title to the premises, demanded in their action of disseisin, by virtue of the levy of an execution. The motion presents for determination, three questions, 1. Whether an officer may be admitted to falsify, by his own testimony, the return which he made. 2. Whether he is compellable to give such testimony. 3. Whether the levy of the execution, and the appraisement of the land taken, and the charge to the jury, were pursuant to law. 1. If an officer were permitted to falsify his indorsement on an execution, it would destroy confidence in returns, and render titles thus acquired the subject of doubt and uncertain, ty. That returns are not liable to an attack from this quarter, I take to be settled and indisputable law. Jenk. 189. pi, 89. Co. Litt. 171. Heath’s Max. 177. Collet v. Marsh, Cro. Eliz. 371. 397. Arundell v. Arundell, Yelv. 34. Gardiner v. Hosmer, 6 Mass. Rep. 325. 2. If the sheriff were admissible to falsify his return, clear I am, that he is not compellable to give testimony for that purpose. For a false return, the sheriff is, by statute, liable to a penalty ; and there exists no doubt, that he cannot be eoerced, by his testimony, to expose himself to a recovery. Phill. Ev. 206. & seq. My opinion would be the same, if the effect of the testimony were merely to subject the witness in debt. It is an established principle, that a person cannot, in a suit against him, be compelled to produce evidence against himself; and by strong analogy, he ought equally to be protected in his interest, when called on to testify for another. I am aware of the different opinions, which, in West-minsler-Hall, have been entertained on this subject; but in this state, the decisions have been uniform, and invariably have protected the witness from answering a question, that [533] would charge him with a debt. Storrs v. Wetmore, Kirby, 203. Starr v. Tracy & al., 2 Root, 528. Swift's Ev. 77. 3. It remains to be considered, whether the levy of the execution, the appraisement of the land, and the charge to the jury, were according to law. The execution was levied on 18 acres, 3 roods, and 22 rods of land, with buildings standing thereon ; and the land and buildings were separately appraised, the former at 30 dollars per acre, and the buildings at 270 dollars. On making the appraisemeirt, it appeared, that the property levied on, exceeded the demand ; and then, by the direction of the plaintiffs, a quantity of the land, including the buildings, was appraised, precisely sufficient to equal it; and this, accordingly, the sheriff set off on the execution. The defendant claimed to have proved, that the proceedings with the execution, were designed to enable the plaintiffs, after the appraisement, to make an election ; and that this was done, with the fraudulent view of obtaining an undue advantage ; while, on the other hand, the plaintiffs insisted, that these facts were not established. The defendant further contended, that the levy and appraisement, independent of any improper purpose, were illegal. The judge instructed the jury, that the preceding facts, if they took place fairly, and without fraud, would not vitiate the levy; but that, if the levy was made with a fraudulent intent, to injure and oppress, and obtain an undue advantage for the creditors, they must find for the defendant. The question of fraud was fairly presented to the jury ; and as their verdict was for the plaintiffs, it must be conceded, that the levy of the éxecution was not with any fraudulent intent, orto obtain any undue advantage. The single inquiry remains, whether on principle, aside from every improper view, the levy was legal. The statute has not prescribed the manner, in which an execution must be levied on land. That mode of levy should be sanctioned, which is fair, and which, while it produces no unreasonable inconvenience, should not easily be liable to secret fraud or oppression. In the case before us, the mode of levy and appraisement, was neither fraudulent nor oppressive, nor easily susceptible of undetected abuse. I cannot but think, that excessive fears have been indulged, lest the debtor should be defrauded or oppressed, without duly regarding the [534] proper corrective, that is, an investigation of the facts by a jury, who, with sufficient vigilance, will enquire into the motives and tendencies of every transaction of this nature. On the other hand, the convenience of the creditors is not to be entirely disregarded. The land and buildings, it may fairly be presumed, were conjointly levied on ; and were separately appraised, that the creditor might ascertain, whether, with the buildings, he could appropriate a sufficiency of land to render them desirable and useful. If, for a motive of this description, or any other, having in view an object perfectly fair and entirely reasonable, there is a separate appraisement of property levied on, I cannot say, that it is incompatible with private justice, or public convenience. The other judges were of the same opinion. New trial not to be granted.