Hulett v. Soullard

The opinion of the court was delivered by . Red field, Ch. J. In regard to the legality of the levy, although there might have been some ground of doubt, as to the proper mode of making it originally, it seems to us the creditor selected the only practicable one. The lease-hold estate is not included under the general definition of “ real estate ” in the statute in regard to the levy of executions. Those terms, by § 20 include only such estates, as are made subject to the levy-upon the land itself, by § 19. But the “rents, issues, and profits of real estate, leased for life or years,” reserving a rent, are by § 39 made liable to be levied upon in a particular mode, by compelling the tenant to attorn to the creditor, and pay him the rents, until they shall extinguish the debt and costs. And if the rent is perpetual, and less than the annual interest on the execution, the officer may endorse an amount equal to the sum of which the rent is the annual interest, satisfied. And the mortgage of this estate, by metes and bounds, as was done in this case, would seem to be only an assignment of the rent, and as a mortgage in this state does not confer a power of sale, the mortgagee could only receive the annual rent, <and might enforce his debt upon the other pieces of land: so that the mortgage would stand very much, as if it had been only upon the other two pieces of land, and this portion of the security had been by a separate instrument, or even by a pledge of personal property. The estate in. the lease-hold property is soi diverse from that in fee, that it could not be reduced readily to the same denomination, so as to admit of a- levy,-upon an undivided, [298] portion. The mode of levy upon the two kinds of estate is altogether dissimilar. The modes of levy are as dissimilar as that upon real and. personal estate almost. So that there would he almost the same embarrassment in levying upon an undivided portion of the equity of redemption, as if the same mortgage had also included bank, or railroad stock, or other personal security, more or less issuing out of real estate, or altogether independent of all connection with the realty. We do not now p erceive, how any available levy, upon the equity of redemption, could have been made, different from the one made. II. In regard to the mode of declaring, it no doubt, at onetime, in the history of the law, would have been regarded insufficient. But since it was determined, that giving another security, paying the debt in any other property, would enable the surety to maintain general assumpsit, for money paid, it must be regarded, as quite indifferent how the surety extinguishes the debt. If he do it, in any mode, it is, so far as the principal is concerned, equivolent to the payment of money for his benefit, and at his request. — Anslie v. Wilson, 7 Cowen 662. Randall v. Rich, 11 Mass. 498. III. This court have held, that the surety may recover costs which have been incurred, in good faith, and the same rule prevails elsewhere. Winn, Admr. v. Brook, 5 Rawle 106. Hayden v. Cabot, 17 Mass. 169. If when a surety was sued, upon -the debt of his principal, and was unable to pay it, and the same went into judgment, and was levied upon his land, he must lose all costs recovered, and the expense of the levy, because, he did not pay the principal’s debt, more promptly, than the debtor himself whose duty it was to do it, and save the surety all trouble, it would certainly afford a remarkable instance of absurd refinement, not to say refined absurdity, and if the debt may be recovered as money paid, so equally may the costs. Judgment affirmed.