Bachelder v. Thompson , 41 Me. 539 ( 1856 )

May, J.

The right of the plaintiff to recover depends upon the validity and effect of the levy, made upon his execution against Eobert Thompson, June 10, 1853. That levy was upon the rents and profits of the premises described in the plaintiff’s writ, and it is alleged that the said Thompson had a life estate therein.

It appears, from the return of the appraisers, that they estimated that the rents and profits of said land, exclusive of the buildings thereon standing, for one year, would be sufficient to satisfy said execution; and that they set out said tract of land for that time to satisfy said execution and all fees. The return of the officer is very similar in its language, except that it states the amount of the fees. No mention is made, in the return of either, of the amount then due upon the execution, nor does it appear whether interest was computed on the sum due on the execution or not. If interest was included in the computation, there is nothing to show the time when the rents and profits were regarded as falling due, and to which the interest should have been computed.

The R. S., c. 94, § 14, in express terms, provides that, when an execution is levied on the rents and profits of a life estate, “the appraisers shall estimate” them “for such length of time as shall be sufficient to satisfy the execution; and for such term of time the premises shall be set off to the creditor, if the life estate shall so long continue; computing interest on the sum due on the execution, and deducting the rents and profits, as so much paid from time to time, when the rents and profits fall due.” This provision is imperative in its requirements. Do the proceedings upon the plaintiff's execution show a compliance therewith? We think not.

The debtor is entitled under th"e statute to a specific statement of what has been done. Public policy requires such statement, that he may see whether more or less of his property has been taken, than the amount of the debt and costs wbicb he owes. The return should state, in dollars and cents, the precise estimation of the rents and profits which have been set off, or at least there should be some reference to other papers by which the amount can be made certain. Rawson & als. v. Clark, 38 Maine, 223. If the amount exceeds, even by a few cents by way of interest, or otherwise, the exact sum required to satisfy the debt and costs, the levy will be void. Glidden v. Chase, 35 Maine, 90; Brown v. Lunt, 37 Maine, 423; or, if the language of the return be so uncertain that it cannot be told whether there be any excess or not included in the levy, then it cannot be regarded as sufficient to pass the estate.

A mere statement in the return that the rents and profits for a certain time, in the estimation of the appraisers, will be sufficient to satisfy the execution and all fees, would be true even if they exceeded double that amount. A precise actual value should be put upon them. The return in this case, failing to conform to the principles before stated, is clearly too loose to be upheld. It, therefore, becomes unnecessary to consider the other questions which the counsel have discussed. The plaintiff must be nonsuit.

Tenney, C. J., and Hathaway, Goodenow, and Appleton, J. J., concurred.