Hobart v. Frisbie

Peters, J. The defendants contend, 1. that the bill contains no averment, that the execution and the doings of the officer thereon were duly recorded or returned, but a mere recital of the evidence thereof; and 2. that the officer’s return sets off to the creditor neither the whole, nor a correct proportion, of the equity of redemption. 1. By the recital of the return, it becomes parcel of the bill; and it is included in the demurrer. The averment in the bill is, that the plaintiff caused the execution to be duly levied on the land; and that the same was set off in due form of law, in full satisfaction of the execution. The recording of an execution, and the return thereof, when levied on real estate, are essential requisites prescribed by statute. Tit. 63. p. 283. But it no where appears, expressly or impliedly, that these were ever done. The expression “duly levied,” has no reference or allusion to the acts of the town-clerk; and the recital of his certificate, is, certainly, not an averment. It is an established rule in pleading, that the plaintiff should declare on the facts constituting the gist of his action, according to their legal operation, and not on the evidence of those facts. Brunson v. Brunson, 2 Root 73. Cooke v. Simms, 2 Call. 39. Bacon v. Page, 1 Conn. Rep. 404. 1 Swift’s Dig. 601. 2. By the officer’s return, it appears, that the equity of redemption was appraised at 1200 dollars; that the debt due the mortgagee, was 211 dollars; and the execution and costs, 175 dollars, 11 cents. When an execution is levied on an [595] equity of redemption, and is of sufficient magnitude to take the whole, it may be levied on the whole; and the equity of redemption will be transferred to and vested in the levying creditor; and he will have a right to redeem, the right of the mortgagor being extinguished. 2 Swift's Dig. 182. Punderson v. Brown, 1 Day 93. But as an equity of redemption is indivisible, and cannot be separated by metes and bounds, when the execution is not sufficient to take the whole, it must be levied on an undivided part in such proportion as the sum of the execution and costs bears to the value of such equity; whereby the levying creditor becomes tenant in common with the mortgagor, in the same manner as when a part of a tenancy in common is taken in execution. 1 Swift's Dig. 155. Hinman v. Leavenworth, 2 Conn. Rep. 244. n. Scripture v. Johnson, 3 Conn. Rep. 211. But in the present case, the officer has set off to the levying creditor a part of the equity of redemption in such proportion as the sum of the execution and costs bears to the debt due the mortgagee, instead of the interest of the mortgagor. The acquisition of real estate by execution, is derived from statute: it is in derogation of the common law, and is stricti juris. When the inheritance of a citizen is swept from under his feet, by legal process; when an unfeeling creditor can say to his humble dependent-" Hæc mea sunt, veteres migrate, coloni !" the rigid rules of the summum jus ought to be enforced, and an omission of any statute requisite, considered fatal to the claimant. (a) I am, therefore, of opinion, that there is nothing erroneous in the judgment complained of. Hosmer, Ch. J. and Bristol, J. were of the same opinion; Brainard, J. being absent. Judgment affirmed. Footnotes [(a)] Parker v. Rule’s lessee, 9 Cranch 64.