Ross v. Shurtleff

The opinion of the court was delivered by Tart, J. The orator seeks to foreclose a mortgage upon land in Walden. The mortgage was by deed of defeasance conditioned for the payment of a note now held by him. He claims to own an undivided interest in the equity of redemption, and asks by the bill to have partition made ; the defendants, his co-tenants, to account for the rents and profits for the time they have been in possession, and a suit of audita querela brought to vacate a levy, under which he claims, perpetually enjoined. [181] The defendants make several objections to a decree for.the • orator. I. That he has a remedy at law, and equity no jurisdiction. The foreclosure of a mortgage, in whatever form it may exist, and this is a bill praying for one, is a proper matter for the cognizance of a Court of Chancery. . , II. That the bill is multifarious. If such is the fact the' objection was made too late. It should have been interposed by demurrer. Wade v. Pulsifer, 54 Vt. 45. III. That Farrar was improperly joined as party defendant. The bill alleges that Farrar joined in bringing a suit of audita querela to vacate the levy of an execution, under which'the orator claims title to a portion of the premises in question, and asks to have the suit enjoined. If the suit is maintained it is apparent that the title of the orator fails. Farrar does not deny in his answer that he did so join in instituting the proceedings, but insists that he ought not to be made a party to this suit, as the bill does not show that he has any interest in the audita querela proceedings. There is á direct allegation in the bill that he joined in bringing the suit, tod it was the duty of the defendant Farrar to answer it directly; it was peculiarly within his knowledge. His answer is silent as to the fact; and the rule in such a case is that where the bill charges a fact to be within the knowledge of the defendant, or which may fairly be presumed to be so, if the answer is silent as to the fact, it will be taken as admitted. 1-Dan. Ch. Pl. & Pr. (4th Am. Ed.) 837, n. 4. He, having brought the proceedings or caused them to have been instituted, is a necessary party to this suit which is brought to have them enjoined. IV. Five objections are made to the validity of the orator’s rights under the levy of execution in the case of Cole v. Shurtleff. 1. That the execution describes the judgment as rendered by the County Court when it' was in fact a judgment of the Supreme Court; [182] 2. That no appraisers were appointed to appraise the property ; 3. That the levy was void for uncertainty; 4. That it was void because the mortgage was misdescribed; 5. That the portion of the premises set off was described as being subject to the Burke levy. The clerk in issuing the execution described the judgment as rendered by the County Court, when in fact it was a judgment of the Supreme Court. We think the error a clerical one. It was obviously an error. The names of the parties and the damages and costs were stated correctly ; the execution was formal in all respects ; it was signed by the proper authority ; and it was stated in it that it was recoveicd at a time when only the Supreme Court could have been in session, a fact of which judical notice must be taken. Just what the correction should be is apparent from the instrument itself; it furnishes the data for its own rectification. It being merely a misprision of the clerk, the levy was valid in itself. Upon the evidence the court find that Shurtleff agreed upon the appraisers and the amount due upon the mortgage, and that the amount was correctly stated ; no question can now be made upon either point. Durant v. Shurtleff, supra. We do not think there was any uncertainty about the levy. The statute governing levies was substantially complied with, and although' the officer states that it was made subject to the Burke levy no injury could possibly result from such statement, and it was apparent that all that the debtor would be called upon to pay was the mortgage encumbrance, and the error, if any, was cured by the provisions of our statutes relating to defective levies. R. L. ss. 1596, 1598. The Burke levy was the set-off of an undivided portion of the equity, and making the Oole levy subject. to the Burke levy means no more than that the officer did not attempt to set off to Oole any of the undivided parts that he had already set off to Burke. Y. The question so elaborately argued that the executions were not entitled to interest, and therefore the levies under them void, is governed by R. L- s. 1547, which provides for the collection of interest on final process. [183] VI. The officer who made the levy of the orator’s execution against Cole held an original execution in his hands at the time he was removed from office. We think that under s. 860, R. L., he could complete the service of it, and also of any alias issued in the same suit. He himself obtained the aliases in order to finish the business he had in his hands at the time his deputation as sheriff was revoked. We think it clearly within the spirit and letter of the statute to permit him to do so. VII. The defendants further object to the orator’s levy for the reason that the recognizance taken before the execution issued, was defective. The memorandum of the justice made upon the writ states that it was taken “ and the surety recognized as the law requires.” The sum in which it was taken was correctly stated. The memorandum shows what it was for;' intelligibly expresses the object of its being taken, and the name of the recognizor was stated. If there is any defect in the minute made by the justice, it was undoubtedly supplied by him when he made up the record. There is no evidence before us of the record, only a copy of the original writ and the minutes of the justice made upon it. We think it sufficient. 10 Vt. 525 ; 11 Vt. 590 ; 13 Vt. 639. That the defendants cannot take advantage of such an error, see Essex Mining Co. v. Bullard, 43 Vt. 238. VIII. The audita querela was brought in the County Court; the record sought to be vacated is in the Supreme Court. The writ was improperly issued. Warner v. Crane, 16 Vt. 79. The pro forma decree of the chancellor is reversed and cause remanded, with a mandate that a decree be entered for the orator, in accordance with the prayer of the bill, with costs. Redfield, J., did not sit.