Mather v. Chapman

Hosmer, Ch. J. The land taken on execution, by the statute, (p. 57.) is to be appraised by freeholders of the town where it lies; and if the parties neglect, or do not agree on the appointment, the third appraiser (the law requiring three) is to be appointed, by any justice of the same town. The omission of the sheriff to certify this fact, as his return is the only evidence of title, vitiated the levy. After the determination of the case in the superior court, and the reservation of a motion for a new trial, to this Court, for the revision of it, the General Assembly, at their session in May, 1825, passed an act to establish and confirm the levies of executions on real estate. By this act it was provided, “That in all cases in which executions have been levied on lands or real estate, and the same setoff, by any sheriff, deputy sheriff or constable, or other proper officer, since the first day of January, 1822, the returns on which were made according to the law previously and until that time in force, be, and the same are hereby established and ratified"-"Provided, nevertheless, that where the title attempted to be acquired, by any levy made as aforesaid, has been finally decided against the creditor named in such execution, the same shall not be affected by this act.” The levy in this case was made according to the law previously, and until that time, in force; that is, until the 1st of January, 1822, the period referred to. The law anterior to this time did not require, that the justice of the peace appointing appraisers, should be of the town in which the land levied on was situated; but that he should be competent “to judge between the parties in civil cases.” Stat. 282. ed. 1808. This competency every justice of the peace had, whose residence was in the town in which either the plaintiff or the defendant dwelt. Hence, it is obvious, that if the justice who appointed the appraisers on the plaintiff’s execution, lived in Middletown or East-Haddam, there would exist no objection to the levy of the execution. The only objections made to the granting of a new trial, refer to the late act of the legislature. It is first said, by the defendants’ counsel, that the act in question is unconstitutional, because it impairs the obligation of [58] contracts. Between the parties there never was any contract relative to the land. The levy of the execution was altogether in invitum; and the objection points at an object, which has no existence. It was likewise objected, that there had been a final decision against the creditor; and that this brings the case within the proviso of the before-mentioned law. There was not a final determination of the cause within the meaning of the act. The judgment of the superior court, undoubtedly, was final, as con-tradistinguished from an interlocutory decision; but this technical use of the term was not within the contemplation of the legislature. They used it in its most absolute sense, as synonymous with ultimate or conclusive, and intended to discriminate those cases, in which there had been determinations, that put the question at rest, from those, which were remaining in court, and yet the subject of litigation. The cause between the parties is in fieri, and has never been finally decided, pursuant to the intendment of this expression, in the act of the legislature. In the last place, the defendants objected, that the law in question is retrospective, and operates unjustly on vested rights. In Goshen v. Stonington, 4 Conn. Rep. 209. it was adjudged, by this Court, that a retrospective law impairing vested rights, if it be not clearly unjust, is entitled to obedience; and that to disregard an act of the legislature, unless it be inequitable, oppressive and in violation of the social compact, is not within the confines of judicial authority. I discern nothing of this character in the law under consideration. It is the ordinary exercise of legislative authority in similar cases, sometimes requisite to prevent great injustice and public inconvenience. In the case before us, the error arose from slight and unobserved alterations at the late revision of the law relative to the levy of executions. The wide-spread mischief to officers, who had faithfully performed their duty, according to their best knowledge; and the rights of numerous creditors, whose debts were in jeopardy, furnished strong political and equitable reasons for the interposition of the legislature. On the other hand, to the mistaken levy of the execution the debtors had no reasonable objection; and creditors and purchasers, always acting with full information, derived from the records of land titles, could not justly complain, that they were not permitted to wrench [59] from those who had levied their executions defectively, the property, to which they had, at least, an equitable title. The real question to be determined, is merely this; whether every retrospective law, acting on vested rights, is invalid. If it is not, there are few cases, the equity of which more imperiously demands legislative interposition, than those within the purview of the late law. The other Judges were of the same opinion; except that Peters, J. was inclined to question the validity of the confirming act, on general principles; though he admitted, that he could not distinguish this case from that of Goshen v. Stonington: New trial to be granted.