Thomas v. Platts

Bartlett, J. The plaintiff claims to recover on the bond upon the ground that he has failed to obtain satisfaction of his judgment against Clarissa Brockway, by reason of the delay in his suit against her, occasioned by the defense made by Esty and Platts. The replication fails to show any such damage; on the contrary it sets out a legal satisfaction of that judgment. Green v. Bailey, 3 N. H. 33; Burnham v. Coffin, 8 N. H. 120; 2 Cru. 57; Pratt v. Jones, 22 Vt. 346. It avers that on the sixteenth day of November, 1860, the income of the debtor’s real estate and her interest in the real estate were set off to the plaintiff, at the yearly value of §45, “ to continue from” that day “until the first day of January, 1867, should the said Clarissa so long live,” in full satisfaction of the execution, &c. This levy is not shown to be void for error in the proceedings, nor has it failed for want of title in the debtor, since she had a life estate in all the lands, which included the interest set off to the plaintiff. Had the whole life estate been set off, the death of the cestui qui vie on the fourteenth of February, 1861, would not have avoided the satisfaction of the execution by the levy; for the creditor would have taken the risk of the longer or shorter continuance of the term: and where, as here, the appraisers think the whole term of greater value than the amount of the execution, we think the same rule applies, for we have no statute like that in Massachusetts, providing further remedies upon the judgment in case of the expiration of the life estate before the end of the term fixed by the appraisers. Mass. Rev. Stat., ch. 103, sec. 12. By the levy the whole term for which the land was set off passed to the creditor, and his execution was at once satisfied to the extent of its entire value; otherwise the execution must be held satisfied only as the income was received or the land held, and the unsatisfied poi'tions ought to bear interest; but we have no practice or statute justifying’ a levy for future interest on the judgment debt, or any recovery of interest after such an estate in land has been set off for a term of a value equal to the judgment debt. The proviso, “if the debtor should so long live,” relates only to the time for which the creditor may hold, and is not a condition of the satisfaction of the execution. The limitation of time is made to fix a period beyond which the creditor is not to hold, where the appraisers deem the [633] debtor’s whole term of greater value than the amount of the debt. McConihe v. Sawyer, 12 N. H. 408. The plaintiff has therefore received all that was given him by the set-off. Although the death of Clarissa Brockway in fact diminished the value of the property levied on, it had no legal effect upon the satisfaction of the execution. Blumfield’s Case, 5 Rep. 87, a; Com. Dig., Execution, H. As the replication fails to show any breach of the condition of the bond, there must be .. Judgment for the defendants on the demurrer.