Freeman v. Thayer , 29 Me. 369 ( 1849 )

How Ann, J.

The title to the premises, from which the mill logs in controversy were taken, was contested at the trial. The plaintiffs claimed it, as grantees of Grosvenor, whose title was acquired by attachment and levy of execution upon the land, as the property of Chesley, one of the defendants, in 1836. The defendants contended, that one Jackson acquired the title in 1816, at a sale for taxes, and by a collector’s deed ; and that Chesley, under whom the other defendant justified, purchased this title from Jackson in 1840, and took conveyance by deed of warranty.

The presiding Judge instructed the jury, “ that they might consider, for the purposes of the trial, that Jackson acquired a good title, by virtue of the sale of the lot for taxes, but that the purchase of that title by Chesley, after the levy, would not defeat and avoid the levy; and the plaintiff’s title must be considered good, notwithstanding the deed from Jackson to Chesley ; and that Chesley had no legal right to purchase the title, even if it were good in the hands of Jackson, to defeat the title acquired by the levy.

The exceptions were urged upon these instructions, and waived as to other rulings and directions of the presiding Judge.

If the title of Jackson were good, as assumed in the instructions to the jury, then Chesley was without title at the time of the attachment and levy, and nothing would pass to Gros-venor by such levy. It was inoperative and void ; and would not estop the creditor from reviewing his judgment; nor would it estop the debtor, for the estoppel must be reciprocal and mutual.

All interest then in the debtor, which could be reached by the levy, would pass as effectually by such levy, as by his deed. But, as presented, the case finds that he had no title to the premises when the levy upon them was effected. Therefore, by purchasing in the title, subsequent to the levy, Chesley did not violate any covenant, contradict any declaration or act, or impair the effect of any record, upon which his creditor could have properly relied to acquire, or protect any rights ; and he would not be estopped to assert this title, upon any settled principle of estoppel.

It does not appear to be necessary, for the purposes of justice, to extend the doctrine of estoppel beyond its established rules and principles. Exceptions sustained.