Brown v. Lunt , 37 Me. 423 ( 1854 )

Howard, J.

— These parties derive their respective titles from Whitmore; his title, acquired from Peter Lunt, in 1843, is not in controversy. The demandant claims under an attachment, by a creditor of Whitmore, on May 9, 1851, and a levy of. execution in May, 1852. The tenants hold under a deed from Whitmore to Mrs. Lunt, one of the teriants, and the wife of the other, dated, and purporting to have been exe.cuted on April 3, 1851. The validity of their title though prior in date-to the attachment, is assailed upon the ground, that the deed to Mrs. Lunt, was not so executed and recorded as to pass the estate, and stand against the subsequently acquired title of the demandant; and, that if, duly executed and recorded, yet that it was without consideration, and void as against the creditors of Whitmore. The tenants, in turn, contend, that the levy through which the demandant claims, was defective and void.

The objection taken to the execution of the deed to Mrs. Lunt, is, that the certificate of acknowledgment, was not made by a person authorized to make it, or to take the acknowledgment of deeds, and that it was, therefore, inoperative, and did not authorize the deed to be recorded. E. S., c. 91, § §1,17, 24,26. The conclusion will follow if the objection be sustained. Eor such a record would not afford constructive notice to the attaching creditor, and his title would take precedence. DeWitt v. Moulton, 17 Maine, 418. Since actual notice to him, of the prior conveyance is not proved, nor can it be fairly presumed from the evidence reported.

It appears, that the magistrate who made the certificate, was not in commission at the time. Being called as a witness, by the demandant, at the trial, he testified, “ that he had no doubt, that the commission whi^h he held as a justice of the peace, had expired before he took the acknowledgment of that deed.” And on cross-examination he testified, “ that he had acted as a justice of the peace ever sine® the year 1809, by commissions under Massachusetts and Maine; that a year or two before he took the acknowledgment of this deed, his last commission had expired, as he had since ascertained; that he did not know the fact at the time, acted inadvertently; that he had constantly and frequently acted as a justice of the peace, after his commission expired, until after he took the acknowledgment, believing that he was a justice of the peace; and that the parties to the deed well knew that he so acted.”

It is plain, that he was not then a justice of the peace de jure. Was he such de facto, and can his acts in question be sustained?

“An officer de facto, is one who has the reputation of being the officer he assumes tobe, and yet is not a goo.d officer in point of law.” Parker v. Kett, 1 Ld. Raym. 658; The King v. The Corporation of Bedford Level, 6 East, 368. Or one who actually performs the duties of an office, with apparent right, and under claim and color of an appointment, or election. He is not an. officer de jure because not in all respects qualified and authorized to exercise the office; nor an usurper who presumes to act officially, without any just pretence or color of right. A mere claim to be a public officer, and exercising the office, will not constitute one an officer de facto ; there must be, at least, a fair color of right; or an acquiescence by the public in his official acts so long that he may be presumed to act as an officer by right of appointment or election. The King v. Lisle, 2 Str. 1090; Wilcox v. Smith, 5 Wend. 231; Plymouth v. Painter, 17 Conn. 588; Baird v. The Bank of Washington 11 Serg. & Rawle, 411.

The distinction between officers de facto, acting colore officii, and officers de jure, has been recognized in England from an early period, and seems to have been applied to officers of every grade, from the King to the lowest incumbent of office. In statute of Edw. 4, c. 1, Henry, 4, 5, and 6, were styled “late Kings of England successively, in dede and not ofryght." And in charters granted by King Edw. 4, he describes the line of Lancaster, as “ nuper de facto, et non de jure, reges Anglice." Henry 6, was regarded as King defacto, although he had been declared an usurper by Act of Parliament; and treasons against him were punishable as capital offences, during the reign of his successor. 1 Bla. Com. 204, 371; 1 Hale, P. C. 60, 61; Poster, 397, 398.

The same distinction has been made in the Courts of England, in respect to the office of an Abbot, (L’Abbe De Fontein’s) Year Book, 9 Henry 6, 33; of a Bishop, and of a Steward of a manor, Harris v. Jays, Cro. Eliz. 699; Parker v. Kett, 1 Ld. Raym. 660; of a mayor, Knight v. The Corporation of Wells, Lutw. 580; The King v. Lisle, 2 Str. 1090; of a deputy collector of customs, Leach v. Howell, Cro. Eliz. 533; of a Registrar of a corporation, The King v. The Corporation of Bedford Level, 6 East, 368; and of a justice of the peace, who had not taken the oath of office, before assuming its duties, Proprietors of Margate Pier v. Haunam, 3 B. & A. 266; and his acts were held valid, although he had not complied with the requirements of the statute, (Geo. 2, c. 20,) in taking the oath of qualification; on the ground that the interest of the public at large, required that the acts done should be sustained, Abbott, C. J., remarking, that “many persons, acting as justices of the peace in virtue of offices in corporations, have been ousted of their offices from some defect in their election or appointment; and although all acts, properly corporate and official, done by such persons, are void, yet acts done by them as justices, or in a judicial character, have in no instance .been thought invalid. This distinction is well known.

The same distinction is equally well known in this country, and has been applied in numerous cases, and to a great variety of offices, where persons have claimed to act colore officii, though not qualified according to the requirements of law, and where their acts, as officers de facto, have been upheld. It is familiar doctrine in the Courts of our own State, and is sustained by the cases following. Fowler v. Bebee, 9 Mass. 231; Nason v. Dillingham, 15 Mass. 170; Bucknam v. Ruggles, 15 Mass. 180; Commonwealth v. Kirby, 2 Cush. 577; Plymouth v. Painter, 17 Conn. 585, where it was held that a grand juror, though legally disqualified by a refusal to take the requisite oath, might be regarded as an officer de facto. Smith v. State, 19 Conn. 493; The People v. Collins, 7 Johns. 549; McInstry v. Tanner, 9 Johns. 135; Trustees of Vernon Society v. Hills, 6 Cow. 23; Wilcox v. Smith, 5 Wend. 231; The People v. Bartlett & als. 6 Wend. 422, in which case it was held that the trustees of a village, holding over beyond the term .for which they were elected, by their own neglect, were liable to be ousted on quo warranto; but that they were officers de facto; that their acts for certain purposes were valid, and that their title to the office could not be inquired into collaterally. The People v. White, 24 Wend. 527; The People v. Covert, 1 Hill, 674; The People v. Stevens, 5 Hill, 616, 630, 631; The People v. Hopson, 1 Denio, 574; Greenleaf v. Low, 4 Denio, 168; McGregor v. Balch, 14 Vermont, 428; Moore v. Graves, 3 N. H. 408; Tucker v. Aiken, 7 N. H. 113, where the rule was held to be applicable co town officers; Cocke v. Halsey, 16 Peters, 81; Allen v. McKeen, 1 Sumner, 312.

Without further reference to cases, it will be found that the distinction stated is fully sustained by those already cited ; and that it applies to all public officers, judicial or ministerial, whether claiming by election or appointment; and whether holding under a defective title within the term, or in possession, and exercising the office under color of right, beyond the term affixed to it by law. Though at the expiration of his commission, an officer may be disqualified from acting officially, yet it may not be so plain and obvious as to deprive him of an apparent right to exercise the office. Others are not required to ascertain at their peril, whether he is legally qualified, before yielding to his authority, or calling upon him to perform official acts, proper and necessary to be done. They are not obliged to demand or test his authority, or to ascertain the date or duration of his commission ; nor is there a necessity upon him, ordinarily, to proclaim -or exhibit the tenure or character of his official authority. An under steward, "holding over after the death of the chief steward, having a colorable right, was held to be so far rightfully in place and power, until the death of his principal was known, that his acts were regarded as those of an officer de. facto. 6 East, 369, before cited, where L’d Ellenborough refers to one of the earliest cases, (Knowles v. Luce, Moore, 109,—112,) to be found in the books, to the point under consideration. Crew v. Vernon, 3 Cro. Car. 97, 98.

In this case, as it appears by the report, the magistrate whose official character and authority is in question, had been an acting justice of the peace, “ constantly and frequently,” for forty years successively, under commission, and qualified as we must understand; and was well known, as such officer, to the parties to the deed, and consequently, from the nature of his official acts and duties, was well known to the public. He was not an intruder, and did not usurp the office ; but was in by appointment, and acting with color of title, though holding over the time limited by his commission, and without legal authority. He had been admitted to the legal possession and enjoyment of the office, by taking the requisite oath of qualification, as seems to be conceded. 1 Str. 538; Rex v. Ellis, 9 East, 252, note. The acts in question were within the jurisdiction of a justice of the peace, and among the ordinary duties of such officers. It does not appear that his official character had ever been questioned. And, while it must be admitted that there may be cases, in which it might be difficult to determine whether a person exercised a particular office by color of right, or as a mere usurper, yet this, in our opinion, is not one of that character. Here the evidence justifies and requires the conclusion that the magistrate appeared to have had a right, and colorable title to the office which he assumed to exorcise, when he took the acknowledgment, and made, upon the deed, the certificate in question. Ho being in reputed authority, as a magistrate of long standing, third persons requiring his official services, were not bound to ascertain whether, or not, he had a commission in force; nor are they chargeable with notice of the date or termination of Ms commission. It is not reasonable to suppose, that he would put the parties, or the public, on the inquiry into his official authority, so long as he was exercising the office, “believing that he was a justice of the peace,” as he testified. The case shows, that neither the magistrate, nor the parties to the deed, nor the public, by fair presumption, knew or supposed, that his commission had expired. He had been duly accredited by the government, and was assuming to act in his official capacity, as of right, and with, at least, a colorable right; and the public, and third persons, might well regard Mm as continuing in authority, until it became apparent, that Ms official character was lost or changed. He must be regarded, therefore, as a justice of the peace de facto, when he took and certified the acknowledgment of the deed to Mrs. Lunt.

“ The law is too well settled to be discussed,” as stated by Chancelor Kent, in People v. Collins, and shown by th'e authorities cited, that the acts of an officer de facto, done by virtue of his office, are as valid, so far as the rights of the public and third persons who have an interest in the acts, are concerned, as if he were an officer de jure; and it is as well settled, that neither his title to the office, fior his official acts, can be indirectly called in question, in a suit to which he is not a party. His office and authority may be valid as to others, though invalid as to himself. These doctrines are held to be founded in public policy and convenience, and necessary to the maintenance of the supremacy and execution of the laws, and for the protection and security of individual rights. Hence the law favors the official acts of those in reputed authority; and the rights of those claiming title or interest through their proceedings. 16 Vin. Abr. 114, [Officer and Offices, G. 3, G. 4.]

The certificate of acknowledgment of the deed to Mrs.' Lunt, having been made by a justice of the peace de facto, was valid, as to the parties to the deed and the public; and it authorized the registry of the instrument upon the public records of deeds. Such registry would constitute public, legal notice to all persons, of the conveyance.

But it is urged, that the conveyance was without consideration, and void as to the creditors of Whitmore. The deed is good upon its face, but the demandant relies upon the testimony of Whitmore, whom he called as a witness, to support this objection. The tenants rely upon the testimony of the same witness, as furnishing evidence to meet the objection, and repel all presumptions of fraud.

The notes of the grantee, for two thousand dollars, she being a married woman, would, of themselves simply, furnish no consideration for the conveyance; but being indorsed by the husband, in pursuance of his agreement at the time, his liability was secured upon the notes, and they thereby constitute a valuable consideration. Whether he indorsed at the time, as the evidence tends very strongly to show, or “ within a day or two after they were given,” in fulfillment of his agreement made at the time, would make no difference in this case, as to his liability, or the validity of the consideration furnished.

The estate, or farm, as it is called, was proved and admitted to be of much greater value than the amount paid or secured by the notes. But the tenants proved by the plaintiff’s witness, Whitmore, on cross-examination, that there were additional and other considerations than those named in his deed, for the conveyance; such as that he took the conveyance from Peter Lunt, who was his father-in-law, in 1843, to remove the incumbrances then upon it, in order to relieve the grantor from embarrassments, and that he held the farm by agreement as security; that there was some misunderstanding between him and Lunt, as to the amount of his claim in 1851, but that they finally agreed upon two thousand dollars, as an amount sufficient to cover his claims, and that upon receiving the notes before mentioned, for that sum, he conveyed the premises to Mrs. Lunt, and that the tenants had continued to occupy the farm since the conveyance in 1843.

It was competent for the tenants to aver and prove additional considerations not expressed in the deed, and not inconsistent with that expressed: The cases cited are full to this point. Tyler v. Carleton, 7 Maine, 175, and the cases there referred to; Emmons v. Littlefield, 13 Maine, 233; McCrea v. Purmort 16 Wend. 665; Wallis v. Wallis, 4 Mass. 135; Quarles v. Quarles, 4 Mass. 682.

But it is contended that, as all trusts, in this State, concerning lands, except those which arise or result by implication of law, must be created and manifested by writing, parol .evidence was not admissible to prove any supposed trust,, or secret agreement between Peter Lunt and Whitmore. R. S., c. 91, § § 31, 32. A party might not be compelled to execute any such trust, nor could it be enforced, unless manifested and created, as required by statute. Yet a parol trust may exist, and may be executed voluntarily, and the existence of suck a trust may be established, and ordinarily must be proved by parol evidence.

One may, if he will, do that which the law will not compel him to do, and those whose rights or interests are not thereby affected injuriously have no cause to complain. Here the conveyance was not in trust for the debtor, but in execution, in part, at least, of a trust reposed in him by his grantor. That trust, though secret, would not be conclusive evidence of fraud, against the creditors of the grantor, and still less, as to creditors of the grantee.

The burden of proof is on him who alleges the want of consideration, or fraud, in a conveyance good upon its face. Here a valuable consideration is shown by the testimony offered by the demandant, and the evidence does not establish fraud in the reconveyance of the farm to the wife of the grantor of the debtor. But, on the contrary, the debtor, when called as a witness by ^he demandant, testified, “ I was a merchant in this 'city, (Portland,) in 1851, in good standing when I made the deed to Mrs. Lunt; I stopped payment some time in April or May, 1851; neither Mr. nor Mrs. Lunt knew any thing of my situation in business matters; Mrs. Lunt first proposed that I should convey to her; that conveyance was -not made to affect my creditors, or. keep my property out of their way.” This testimony was not contradicted, nor assailed, excepting by a disclosure of the witness, offered to show that he had therein stated, that the notes referred to were not indorsed by Peter Lunt on the day they were made; and it stands alone and uncontrolled by any faVjts or evidence in the case.

The case, Smith v. Lane, 3 Pick. 205, was regarded as one where the conveyance was fraudulent, and apparently was not very fully considered; and it does not appear to have been subsequently regarded as authority to the full extent, in more recent decisions by the same Court. Cutler v. Dickinson, 8 Pick. 386; Oriental Bank v. Haskins, 3 Met. 332. In Flint v. Sheldon, 13 Mass. the tenant undertook to prove by parol a secret trust, to control and defeat his own deed, but the evidence was rejected. Somes v. Brewer, 2 Pick. 184, is different from this in the facts and principles involved. In Parkman v. Welch, 19 Pick. 231, 236, the conveyance was held to be clearly fraudulent and void in law.

In the case at bar, we pannot conclude from the evidence, that the conveyance under which the tenants hold, was either voluntary or fraudulent. Roberts, Statute of Frauds, 15, 66, 12, 13. ,

The statute of 1854, c. 68, making valid the acknowledgment of deeds, in certain cases, is supposed to have reference to this case; but its construction is not required at this time, as it cannot be material to' the result of our deliberations.

The objection to the levy involves a question of practical importance, that may frequently arise, and its consideration ■at this time may be appropriate The levy was completed on May 22, 1852. The officer returns, “ By virtue of this execution, on the 20th inst. I took the parcel of real estate described in the above certificate of the appraisers, and on the 22nd inst. I extended this execution -thereon in manner following,” &c. The R. S., c. 94, § § 1, 2, provide that certain descriptions of real estate of a debtor may be “ taken in execution for his debts.” In § 4, the manner of selecting appraisers, their qualification and duties are described. In § 5, it is provided that, “ after the officer has taken land in execution, and given notice to the debtor thereof, and allowed him a reasonable specified time, within which to appoint an appraiser, as mentioned in the preceding section, he shall then proceed, without unnecessary delay, to have the estate appraised, and the levy completed; and it shall be considered as made when the land is taken in execution ; and the subsequent proceedings and return shall be valid, though made and done after the return day, or after the removal or other disability of the officer.” He is required to state in his return on the execution certain facts, and among them, and first, “ the time when the land was taken in execution.” (§ 24.)

As all subsequent proceedings are thus made by statute to relate to the time when the land is taken in execution, the amount for which the creditor can take the debtor’s land by levy of execution, must be the amount- only that is due and collectable at that time. Interest upon the judgment should not be reckoned and included beyond that time, as the officer can take in execution land of the debtor only for his debt then due. Subsequently accruing interest could not, in any just sense, be regarded as then due, or as forming a part of the debt then existing.

It had been decided, before the enactment of the Revised Statutes, that the whole proceedings of the seizure of land on execution, and completing the extent, have relation to the day of the seizure. Heywood v Hildreth, 9 Mass. 393; Brown v. Maine Bank, 11 Mass. 133; Waterhouse v. Waite, 11 Mass. 207; Cushing v. Arnold, 9 Met. 26. But in Allen v. The Portland Stage Company, 8 Maine, 207, it was held that the levy of an execution on real estate could not be considered as commenced until the appraisers wore sworn. In Eveleth v. Little, 16 Maine, 374, in equity, it appeared that the appraisers were selected and sworn on April 11, but that the appraisement was made, the extent com-pleted and seizin given at an adjournment of the proceedings on the twenty-ninth of the same month; and the Court held that the time for redemption did not expire until a year from the completion of the levy. The statute then in force, (1821, c. 60, § 30,) authorized a redemption by the “debtor, his heirs or assigns, executors or administrators, within the space of one year next following the extending execution thereon.” But the Revised Statutes furnish the rule for this case, and as it appears that the sum for which the debtor’s land was appraised and set off on execution, included interest on the judgment, to the time when the extent was completed, and for two days after the land was “ taken in execution,” the levy is invalid. It falls within the decision in Glidden v Chase, 35 Maine, 90.

Demandant nonsuit.

Shepley, C-. J., and Rice, Hathaway and Cutting, J. J., concurred.