Curtis v. Curtis , 47 Me. 525 ( 1860 )

The opinion of the Court was drawn up by

Davis, J.

This is a writ of entry, by which the demand-ant seeks to recover possession of a certain tract of land situated in Rumford, in the county of Oxford.

The premises in controversy were formerly owned by Bailey Curtis, who conveyed the same to Bailey Curtis, jr., by his deed dated May 27th, 1850. Afterwards, on the 13th day of December, 1852, Bailey Curtis, the grantor, commenced a suit against Bailey Curtis, jr., the grantee, in which he attached the premises previously conveyed. In that suit he recovered judgment for the sum of $1012,11, and the execution issued thereon was duly levied upon the same premises March 29, 1853. And, on the 17th day of March, 1855, the said Bailey Curtis conveyed the premises, by deed of warranty, to Jeremiah Curtis, the tenant.

In August, 1854, Bailey Curtis, jr., petitioned for a review of the action of Bailey Curtis against himself. A review was granted in 1855, and a new trial was had in November, 1857, resulting in a verdict in favor of the original defendant for a sum equal to the former judgment against him. Supposing that this reversed the former judgment, and rendered the levy void which was made to satisfy it, Bailey Curtis, jr., claimed still to own the premises, and conveyed the same to Ezra Curtis, the demandant, by'his deed, dated March 15th, 1858.

A writ of review is not analogous to a writ of error. Upon such a writ, “the former judgment cannot be reversed, in whole, or in part. If the former judgment were wrong, the plaintiff in review will have judgment to recover back the money erroneously recovered in the first suit. If the former judgment were right, the defendant in review will have judgment for his costs of review, and may- execute his former judgment,” if it has not been already satisfied. Howe’s Practice, 531.

The statutes of this State are not materially different from the former statutes of Massachusetts. The case at bar is within section ten of chapter eighty-nine of the Revised Statutes of 1857. The judgment of the original plaintiff was reduced the whole amount of it, and judgment rendered for the original defendant for that sum. The statute provides, not that the former judgment shall be reversed, or annulled, but that, “ if the former judgment has not been satisfied, one may be set off against the other.” In this case the former judgment has been satisfied, in part, by a levy upon the premises sued for. That judgment was not vacated or annulled by the judgment in the action of review. The legality of the levy is not questioned, and, therefore, the tenant obtains a good title from the judgment creditor.

Demandant nonsuit.

Judgment for the tenant.

Tenney, C. J., and Appleton, Cutting, Goodenow and Kent, JJ., concurred.