Foss v. Stickney , 5 Me. 390 ( 1828 )

Weston J.

delivered the opinion of the Court at the ensuing terns in Somerset.

Several objections are urged by the tenant to the right of the de-mandant to recover in this action. The certificates of the justices, it is insisted, do not positively name the amount at which the land was appraised and taken, on the levy of the execution. The justices do state the amount from the information of the demandant. If stated truly, it is unimportant from what source derived. The sum, accord-ingto the statement of the demandant, exceeded by a few cents the actual amount of the appraisement; but as this excess is against the demandant, and in favor of the tenant, it is a mistake of which the latter has no right to complain. The tender does not appear to have been embarrassed by any qualification or condition; nor is the right of the demandant impaired by bis having made two successive tenders on the same day, It was competent for the tenant to have re-eeived either. If either was right, more especially if the last was, the rights of the demandant are preserved. The want of the tender of a release prepared by the demandant, as none was required by him to be executed by the tenant, and as this was not assigned as a reason for declining the tender, cannot be sustained as a valid objection. The statute does not require that the money tendered should be brought into court at the first term. It is sufficient if produced and lodged in court, at or before the rendition of judgment.

It is further objected that the demandant, having sued his grantor, upon an alleged breach of his covenant of seisin, and having obtained judgment thereupon, can no longer claim the land against the grantor, or those claiming under him. The covenants set forth in the declaration in that action are, that the grantor was seised in fee of the premises; that they were free of all incumbrances; and that he had .good right to sell and convey the same; and it is averred, in general terms, that the grantor had broken each of these covenants. It does not appear what further proceedings intervened, between the entry of the action and the rendition of judgment. Whether the defendant in that action was defaulted, or whether he pleaded to the same, and if he did, whether the pleadings would disclose any more specific and definite averment of an existing incumbrance, is not ascertained by the case as presented. If the judgment was recovered upon the ground of an incumbrance, it constitutes no objection to a recovery in this action. If on the ground of a want of seisin in the grantor, a question is raised whether it should be made to appear that satisfaction had been obtained. In the case of Porter v. Hill, cited in the argument, it is stated by the court that when a warrantee, in a war-rantia chartce, recovers and has seisin of other lands of the warrantor to the value, he cannot afterwards recover of the warrantor the lands warranted; and that if, therefore, the demandant after his judgment and satisfaction, had sued his grantor for the land, the latter might have defended himself by showing that judgment, which had falsified his deed. The basis of this principle would seem to be the recovery of the warrantee, in the one case, and seisin thereupon of lands of equal value, and in the other, a recovery and satisfaction, which is an equivalent and substitute for a seisin of other lands of the ' warrantor. It is true, that in the subsequent case of Stinson v. Sumner, the court appear to entertain an opinion, that a recovery of judgment is attended with the same .consequences. They refer to, and rely upon, the preceding case of Porter v. Hill as an authority for the latter decision, but do not intimate that satisfaction is necessary to preclude the party from demanding and-recovering the land; but upon this point, from the view we have taken of the cause, it is not necessary for us to give an opinion.

The great and important objection, upon which the tenant relies to defeat the claim of the demandant is, that a part only of the debt, to satisfy which the land of the debtor was extended upon, has been tendered to him. The right of the demandant is derived from the thirtieth section of the act directing the issuing, extending and serving of executions ; which provides that when any tenement or lands shall be taken in execution for debt, it shall and may be lawful to and for the execution debtor, his heirs or assigns, executors or administrators, within the space of one year next following the extending of the execution thereon, to tender to the creditor, or those claiming under him, the debt for which the same tenement was taken, with the charges and disbursements expended in repairing or bettering the same, over and-above the rents and profits thereof. Here the legislature manifestly regard the land or tenement taken, as one entire thing; in relation to which the improvement on the one hand, and the rents and profits on the other, are to be estimated. The heirs, assigns, executors and administrators are named as standing in the place of the debtor, in respect to the tenement taken; by which we must understand the whole property, upon which the execution is extended. The debt also for which the same is taken, is treated as a certain and entire sum. The liquidation is to be made, and the sum, that is, that entire sum, to the amount of which the execution was satisfied, is to be certified by three justices, appointed in the manner presciibed, and the amount by them certified to be due upon the execution, for which the land was taken, (not a part of it) is tc be tendered by the debtor, or those representing him; and thereupon the creditor is required to release to the debtor or his heirs, what ? — the land or tenements so taken in execution. If this he not done, the debtor may recover possession of the lands so taken in execution, in an action of ejectment. From the beginning to the end of this section, the subject matter of, the levy and the debt satisfied, is treated as entire. By the levy, the debt to the extent of the value of the land is paid, and the creditor holds the land by virtue of his extent; unless the same debt be paid or tendered, within the time limited. If the appraisers made a separate estimate of the different parcels taken in the same, it does not change the legal result. The aggregate value of the parcels is the amount for which the execution is satisfied. That is the debt to be tenderedj and the subject matter of the levy is the whole land taken thereby. The attachment, by which a lien may have been created, is entire; so is the judgment, execution, levy and registry, made necessary by law to the validity and completion of the extent. The assignee of part of the land thus taken, and who becomes such between the attachment and the levy, has his remedy upon the covenants of his grantor; or, if he redeem the whole, he may call upon others assenting to such redemption, who are benefited at his expense, for contribution. But without further legislative provision in his behalf, whatever may be the inconvenience to which he may be subjected, he cannot compel the creditor to receive part of his debt and release part of the land taken. If it were otherwise, the creditor might be constrained to relinquish that part, the possession of which might be his principal or only inducement for causing the levy. That part may have appreciated in value, while the other part may have depreciated, by reason of contingencies happening within the year, by which their value might be affected. This is one of the reasons assigned by the court in the case cited from 2. Pick, and applies with equal force to the case before us. In that case it is settled in Massachusetts, that the debtor has no right, without the assent of the creditor, to redeem part. This decision was predicated upon a consideration of the rights of the creditor, which would be equally affected, if the assignee of part could redeem against him.

Judgment on the verdict.