Lee v. Hinman

Lanman, J. The defendant’s objection to the evidence offered, was founded, 1st, upon the statute law of this state, (Stat. 57. tit. 2. s. 76.) in which, he contended, the time when, and the manner in which, executions might be levied upon land, were exclusively designated; that by a long course of practice and usage upon it, a practical construction was given to it; and that [169] a consolidated levy could not be made, nor an estate in common be so created, in several levying creditors, by such a mode of levy: 2ndly, That as by the common law, lands could not be taken by execution, so any statute which subjected them to be levied upon for debts, ought to receive a limited and strict construction; and that each creditor, in the case in question, should have, severally and independently, levied, and, by “metes and bounds,” set off, a distinct portion of the land, upon his execution, and not in common and undivided. The object of the statute is, doubtless, to give just satisfaction to the creditor for his debt, without injury to the debtor or other persons; and such intention of the legislature should be studiously carried into effect. The particular provisions of the act are intended for the benefit of the creditor, in order that the debt may be satisfied out of the debtor’s estate. It would be but a fair and consistent principle of construction to extend to this statute, then, to allow creditors, for whose benefit it was made, to unite in taking the debtor’s land, in such time and manner, not incompatible with the terms of the statute, as would be most conducive to his interest, and in strict conformity to the justice due him. This is done, most manifestly, when the levy of divers executions is made, at the same time. One set of appraisers, as the case may be, will be enabled, on one view, to estimate the land, and by considering it in an integral character, give it a more liberal and yet just value, than could possibly be done, if it were subdivided into fractions, as numerous as the executions.When by consent and agreement of creditors, this can be done, with less expense to an unfortunate debtor, it is altogether the most humane, and least ruinous course, which he could desire. It is not perceived, when the debtor’s whole interest in the land is taken, even if such were not the result, in the saving of expense and the litigious adjustment of conflicting claims, how this objection can be raised by him. Surely, he is not made, by such levy, the unwilling tenant in common with his creditor. Surely, he has no interest, which can be injuriously affected, by the common title and interest of his creditors. This point was well considered, and so holden in the case of Jessup v. Batterson, 5 Day, 368. where it is said, “the whole property is taken at the same time, by creditors, who choose to hold as tenants in common; and as nothing is left in the debtor, neither he, nor any person under him, can have reason to com [170] plain.” And in Swift’s Dig. vol. 1. p. 156. it is laid down, “That where two creditors attached land, at the same instant of time, and caused their executions to be levied in due time, it was holden, that they took moieties of the land.” But, if the soundness of the principle could reasonably have been questioned prior to the case of Jessup v. Batterson, the doctrine was fully recognized, in the opinion of the court, given by the learned Chief Justice Hosmer, in Giddings v. Canfield, 4 Conn. Rep. 482. wherein he admits, that although by ancient and immemorial usage, in this state, executions have been levied on a definite portion of the debtor’s property, and as a general principle, this is admitted to be law, yet in this case, (Jessup v. Batterson, 5 Day 368.) a new rule was established by way of exception, “That if several distinct executions are levied, by separate creditors, of more than sufficient value to appropriate the whole of the property levied upon; an undivided proportion may be set off on each of them.” I am of opinion, as well from the strong reason and justice of the case, which might have governed, as from the clear precedent in law, which did govern, the levy in question, that it was valid. The evidence ought to have been admitted; and I advise a new trial. The other Judges were of the same opinion. New trial to be granted.