Spencer v. Inhabitants of Brighton , 49 Me. 326 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

From the terms of the report, the title to the lands of the plaintiff, sold to satisfy the execution of Thomaston v. Brighton, is not controverted, nor is the validity of the deed from the officer to John S. Abbott now in dispute.

It appears from the return of the officer on that execution that money was received from sundry "inhabitants and proprietors ” in part satisfaction thereof, and that the estate of the plaintiff, for which this action was brought, was seized and sold to satisfy the balance due on said execution, with costs and charges.

A question is now raised, whether in case judgment in this suit should be rendered in favor of the plaintiff, execution can be properly issued against the persons or property of such "inhabitants and proprietors,” as have already made payment in part satisfaction of the original execution on which the plaintiff’s estate was seized and sold.

Section 46 of c. 117, R. S., 1841, provides that, whenever any such warrant of distress or execution shall be issued as aforesaid against any town, it shall be lawful for any inhabitant thereof, or for any proprietor of lands therein, either before or after the issuing of such precept, to pay his part or proportion of such order or judgment; which part or pro-r portion shall be ascertained by an assessment thereof, made by the assessors of said town; and which service they shall be required to perform, at the request of any such inhabitant or proprietor, or on notice given them by the county commissioners.

Section 47 of same chapter provides, that every person so paying his part or proportion, to the treasurer of the corporation for the use of the person interested, or to such person himself, shall be discharged, both as to his person and his property, from such warrant or execution; and by § 48, if any such warrant or execution has, or shall be levied on the property of any person, who at the time has not paid his part or proportion, every person having so paid, or that shall so pay his part as aforesaid, shall be discharged from all executions that may bo issued on any judgment, against the inhabitants of such town, on account of said levy, and his person and estate shall forever be discharged.

The intention of the statute is to grant a perpetual exemption, both to the person and estate of such inhabitants and proprietors as shall pursue the prescribed measures pointed out in the statute to ascertain and pay their just proportion of any such warrant of distress or execution against the inhabitants of the town in which they reside or in which they possess estate, liable to seizure.

Whether a voluntary payment by an inhabitant or proprietor, made otherwise than in the manner pointed out in the statute, would operate on such an execution, may admit of doubt. Grose v. Hilt, 36 Maine, 22.

The statute evidently contemplates that execution should go against the inhabitants of the town, and if any inhabitant or proprietor would claim to be exempted from paying any portion of such execution, or of having his property exempted from liability to seizure to satisfy the same, he must be able to show that he has complied with the requirements of the statute in paying his part or proportion of the original warrant of distress or execution against the inhabitants of such town.

In this, as in all other cases of special exemption, the party seeking his remedy will proceed at his peril in the seizure of property. If he seized that which is by law exempted, he will be liable therefor.

The plaintiff' is entitled to judgment for the value of this land at the time sold, with interest, at the rate of 12 per cent., and, according to the agreement, the damages are to be assessed by George C. Getchell, Esq., on a hearing of the parties.

Tenney, C. J., Cutting-, May, Goodenow and Davis, JJ., concurred.