Beers v. Botsford

Williams, Ch. J. The principal objection urged against the decree of the superior court, was, to the title acquired under the levy of the execution of Street and Monson. And as this title depends upon the levy of Street and Monson’s execution, if that is void, the plaintiff’s case must fail. Was that levy properly made? — 151 — The claim of the defendants is, that the executor should have selected one or more of the pieces of land, sufficient to satisfy - the execution, and not have extended it over the whole ; and it is compared to the levy of an execution upon lands held in common, by distinct titles. Starr v. Leavitt, 2 Conn. Rep. 246. The general law provides, that lands shall be taken by metes and bounds: when that cannot be done, the levy is to be made upon such principles as will best do justice to all the parties. This court has decided, that an equity of redemption is indivisible. Of course, in case of one mortgage upon a single piece of land, the creditor must levy upon the whole, and set off such part or proportion as his debt bears to the w'hole value of the equity of redemption. Scripture v. Johnson, 3 Conn. Rep. 213. For, as the lien is spread over every part of the land, so is the equity in every part of the land. Neither can be limited, except by the boundaries of the tract itself. And where one mortgage is over several tracts, the same principle must prevail. You can no more divide or limit the lien in that case, (nor of course the equity) than in the other. In such case, then, a levying creditor could no more select one of the tracts to place his execution upon, than he could divide a single tract, where the security was ample for the mortgage creditor and the levying creditor. If appraisers could estimate what a distinct piece of land should pay, what should prevent their making a similar estimate of a part of a piece of land, the bounds of which were designated by the sheriff? [t is admitted, that an equity of redemption is indivisible, as it respects the debtor. But if a different rule exists with respect to the creditor, it is not perceived why it should not be equally applicable, whether the mortgage was confined to one tract of land, or embraced several. The only doubt, then, in this case, must arise from this fact, that no one mortgage extends over every piece of land. Some of the mortgages extend over the first and second pieces, and some over the second and third pieces; so that the second piece forms a connecting link between the first and third pieces ; and we see not why the value of the equity of the third piece, for example, may not be affected, by the value of the first piece, in the same manner as if they were connected by one joint mortgage: for the less the first piece sells for, or the less burthen it bears, the greater is the lien on the second; and of course, the less it will bear of the joint lien upon the — 152 — second and third; and so viceversa. We think, therefore, this equity is the same as if the mortgage extended over all those several pieces of land. It was said in the argument, that the levy might have been upon one piece, and an estimate made of what the others should contribute; or one piece, say the second, might have been taken and charged with all the incumbrances. As to the first mode ; it is enough to say, that the appraisers are to appraise the land presented to them, which has been levied upon, but are not charged with estimating what other lands should contribute. And no such estimate could govern a court of chancery upon this subject. They are to appraise the debtor’s interest in the land taken, and not the value of lands not levied upon. As to the other mode proposed of taking one piece charged with the whole incumbrance; if that might be done in this case, we see not why it might not be done in every case, where there is a single mortgage with an equity of redemption more than sufficient to pay the debts ; and so the whole course of decisions upon this subject would be overturned. Punderson v. Brown, 1 Day 93. Of the other cases cited, without going into a particular examination of them, it is enough to say, that we think they bear very remotely on this question. We are entirely satisfied, that the levy was correctly made. The objections to the decree arising upon the motion in error, are, 1. that the facts stated and proved show no equitable title in A. and G. Shepard, and lay no foundation for the decree; and 2. that the facts found do not comport with those alleged in the bill. As to the first. It is objected to the plaintiff’s title, that the Shepards acquired no equitable title to this land, by their levy, because it is found, that the debt to Street and Monson was not the debt of Glover only, but of the Shepards and the other promisers in the note; and that in fact, it was paid by the promisers, and hot by the Shepards. It is indeed found, that the promisers were indebted to Street and Monson, and that the debt was paid by Botsford, in the manner stated, in behalf of the promisers. Now, if it is claimed, that the note was paid by the promisers, then it should have been pleaded to the action brought upon it, and a judgment prevented. As the judgment has been obtained, this court must treat it as having been properly obtained. — 153 — If it is claimed, that it is not in equity due to the Shepards, for they did not pay it, but to Botsford, the answer is, that it is found, that Botsford acted in behalf of the promisers, and that the Shepards have paid all that debt but about 900 dollars, which is the very debt now sought to be charged on the property in question. It is said further, that as Glover and the Shepards were joint promisers and jointly indebted, it was the duty of the Shepards to pay at least a proportion of the debt, and not charge it all upon Glover. Now, if this claim were well founded, this should have been set up in the court below, by way of objection to this decree. But after the Shepards have obtained .judgment upon this note, and levied their execution upon this property of Glover, and their creditors have attached this as their property, they surely cannot, in this stage of the case, be permitted to say, that their title to it is not what it purports to be, because it was their duty to pay a part of the debt. One of the counsel seemed to go farther back, and to claim, that Street and Monson were merely sureties, and had to pay nothing. They wrere debtors to the state for the money, and not sureties ; and Glover and A. and G. Shepard were not known to the school fund office: of course, they were creditors as much as if they had drawn the money from the bank upon their note or deposites. It was also said, that Botsford, having had the equitable title, if he gave it up, he can now have no claim. But if he held it only for security, and he gave, his security to his debtor, it surely would not discharge his debt, or bar his equity. It was also said, that if there was any fraud, he was party to it; and therefore, has no right. But there is no evidence that he knew of the object of the Shepards in this arrangement. Again, it is said, that the fact charged that the conveyance to P. and II. Shepard was made to defraud creditors, is not found by the court. It is not indeed found in the words- in which it is charged. The court find, however, that A. and G. JShepard had been engaged in speculation in Virginia lands, and that said conveyance was made to protect those lands against demands arising out of said speculation, which they were apprehensive might be brought against them ; that nothing was paid for them, by the sons : but they have always — 154 — held them as trustees of A. and G. Shepard. And it seems to the court, that where claims are pending over a man, and he selects a certain portion of his properly, to conceal it or cover it from those claims, and conveys it to a friend, meaning to keep it from those creditors, it is in law a fraudulent conveyance. It is said by Smith, J. in Gaylord v. Couch, 5 Day, 227. “ If to put property into the hands of another, to prevent creditors from taking it, be not fraudulent, language has not the power of expressing fraud.” The court have decided, that when the question is, whether a conveyance is in fact fraudulent, it is a matter which we cannot in this court decide. Weeden v. Hawes, 10 Conn. Rep. 50. 54. But where the question arises upon certain facts found, whether these facts constitute a deed fraudulent in law, the fraud is the judgment of law upon the facts and intents. 1 Burr. 474. The intent being to keep it from these claims, the law infers fraud ; and it has been already decided in this case, that the fact of the party being possessed of other property, is not sufficient to prevent its being fraudulent. 11 Conn. Rep. 369. It is further objected to this decree, that the facts found by the court do not comport with the facts alleged in the bill. First, it is said that the bill states the debt to Street and Mon-son, as a debt due from Glover, whereas in fact it was due from him and A. and G. Shepard and others. The debt was due to Street and Monson from all of the promisers; but as between themselves, it might be due from one of them only. And from the manner in which the parties have treated it, we think such must have been the fact; and the facts found by the court are not inconsistent with it. Again, it is objected, that the bill avers, that the judgment was recovered upon this note for the benefit of A. and G. Shepard, and that it belonged to them; and that they were proprietors of the judgment and execution ; and that Botsford held it merely by assignment from them as surety; and the court find the facts very differently. The court find, that Moses Botsford, in behalf of the promisers in the note, made a settlement with Street and Monson, gave his own bond to the treasurer, and took an assignment of fhe note from Street and Monson as security; that judgment was recovered thereon, as stated in the bill; that Moses Botsford, by the advice and procurement of A. and G. Shepard, delivered the execution to — 155 — P. and H. Shepard, and took their receipt therefor, to account with him for all sums collected thereon ; and that they, with the advice and procurement of A. and G. Shepard, levied the same on the land in question ; that A. and G. Shepard have since paid all the amount of said debts, except what is sought to be recovered by this bill; and that they have ever since held it as trustees of A. and G. Shepard. The substantial facts in this part of the case stated in the bill, are, that the property levied upon is really in equity the property of A. and G. Shepard, though Botsford held the note as security for his advancements. The facts found are, that Street and Monson assigned the notes to Botsford as security for him ; that he, after judgment recovered, by the advice and procurement of A. and G. Shepard, put it into the hands of P. and II Shepard to collect; that they levied it, by the advice and procurement of A. and G. Shepard, on the land in question ; and that A. and G. Shepard have made all the payments, except 900 dollars, and have procured deeds from the mortgagees and levying creditors, to be given to P. and H. Shepard, who, for many years, have held possession thereof, as trustees of A. and G. Shepard. These facts, therefore, support the substantial facts in the bill, though varying, in some unimportant particulars. We think, therefore, that the case has been properly disposed of. The other Judges were of the same opinion, except Sherman, J., who gave no opinion, having been of counsel in the suit. Judgment affirmed; New trial denied.