Lyford v. Dunn , 32 N.H. 81 ( 1855 )

Perley, C. J.

The Revised Statutes, chapter 161, section 8, provide that no action shall be commenced or prosecuted against an administrator, when the estate is decreed to be administered as an insolvent estate; and by section 31, of chapter 184, it is enacted that attachments shall be dissolved by the death of the defendant, in case his estate shall be decreed to be administered as an insolvent estate, but not otherwise, if the cause of action by law survives.»

After the death of Gilman, his administrator, at February term, 1848, came in and assumed the defence of the action, and continued to defend until judgment was rendered against him, at September term, 1851. On the first of January, 1850, the estate was decreed to be administered as an insolvent estate. If the administrator had taken advantage of this decree by plea or suggestion, the suit could not have been further prosecuted, but must have abated. No such objection appears to have been made, and the record shews regular proceedings, a regular judgment, and an award of execution against the goods and estate of the deceased in the hands of the administrator.

The same statute, which provides that no action shall be commenced or prosecuted when an estate has been decreed to be administered as insolvent, also provides that no action shall be sustained against an administrator, if commenced within one year, or more than three years, from the grant of administration, or unless a demand has been exhibited within two years. In all these cases the administrator may protect himself and the estate, by interposing the objection in the proper time and manner. But if he allows the suit to proceed without objection, and judgment to be rendered against him, the judgment stands as valid until reversed, or otherwise annulled and vacated. We think the judgment in this case must be governed by the same rule. The court had jurisdiction of the cause and the parties ; the proceedings are neither irregular or erroneous, and the judgment cannot be impeached collaterally by merely introducing the decree of another tribunal that might have been shewn to abate the action in which the judgment was recovered. McNeil v. Bright, 4 Mass. 282 ; Loring v. Bridge, 9 Mass. 124; Hoyt v. Geltron, 13 Johns. 153 ; Bannister v. Higginson, 15 Maine 73 ; Hammond v. Wilder, 25 Vermont 242 ; Smith v. Knowlton, 11 N. H. 191. The lands of the deceased in the hands of his administrator were liable to be taken in execution to satisfy the judgment. Mead v. Harvey, 2 N. H. 341.

Where an estate is administered as insolvent, the administrator has a claim on the lands for the payment of the debts ; he enters into possession to take the rents and profits, and, by license from the judge of probate, he may sell for the purpose of satisfying the debts. Compiled Statutes 407, § 10.

But the general property in the lands is not in the administrator ; they belong to the estate, and are part of the estate of the deceased in his hands. Whether this estate was in fact insolvent, and these lands necessary for the payment of debts, the case does not shew, and it would not seem to be material until some claim is made by, or in behalf of the creditors. The lands, at any rate, were part of the estate of the deceased in the hands of the administrator.

The plaintiff had a regular judgment against the administrator of Gilman. By the general rule of law, he was entitled to have his execution extended on the lands of the intestate in the hands of the administrator; execution was awarded accordingly, and levied on the lands of the deceased; no claim to the lands has been interposed by the creditors, or the administrator in their behalf; and as to these defendants, we think the levy, and the possession given by the officer under it, constitute a sufficient title and seizin to entitle the plaintiff to partition on this petition. Gore v. Brazier, 8 Mass. 523 ; Bartlett v. Perkins, 13 Maine 90.

It is not necessary now to inquire whether the seizin and title of the plaintiff, derived under this judgment and levy, might not be divested so as to satisfy the claims of creditors allowed by the commissioner. The question on this case is between the judgment creditor, claiming under his judgment and levy, and the defendants, who have no claim to the estate, as creditors or otherwise.

It is objected that the levy is void, because it was made to the assignee, and not to the nominal plaintiff, in whose name the suit was prosecuted. There is no suggestion that the assignment was not valid, and it was put on file in the suit.

Our statute on this subject uses the word “ creditor,” and not the word “plaintiff.” The land is set off to the creditor; the creditor appoints one of the appraisers, &c. Compiled Statutes 500, § 1, 2, 6, 10,11,13 and 14. Was the assignee of this' judgment the creditor, within the meaning of the statute ?

The equitable interest of an assignee is protected by courts of law. If Woodman, after the assignment, had attempted to control this suit, he would not have been permitted to do it; and his discharge could not have been regarded at law. The officer in the service of the execution would be bound to follow the instructions of the assignee, and if he had notice of the assignment, could not protect himself under the orders of the assignor. Martin v. Hawks, 15 Johns. 405; State v. Herod, 6 Blackford 444; Colburn v. Rossiter, 2 Conn. 503; Baker v. Davis, 2 Foster 27.

It would be in direct conflict with these well recognized rights of the assignee, to hold that he was not the creditor, within the meaning of the statute, and the proper party to appoint the appraiser and receive seizin under the levy. We think the levy was properly made, and this we understand to be in accordance with the decision in Rangely v. Goodwin, Carroll, July, 1844, not yet reported.

The several tracts levied on were contiguous, and if an undivided eighth part of the whole tract had been set off on the execution, the creditor would have been seized of an undivided eighth in the whole and in every part; that is to say, of an undivided eighth in each lot. That is exactly what he takes under this levy. So under the levy he takes an undivided eighth in each lot, and that gives him an undivided eighth in the whole tract; and the whole being appraised together, it is in effect exactly the same thing as if an undivided eighth had been set off in the whole by that description. The title is the same, the appraisement is the same, and the right of redemption is the same, as if an eighth had been set off in the whole. It is no more than a different description of precisely the same thing. This objection to the form of the levy cannot prevail.

The judgment of the appraisers as to the expediency of setting off an undivided share, is conclusive, but we do not understand that any objection was made on that account; and it is, perhaps, to be inferred from the case, though not distinctly stated, that at the time of the levy no more than one undivided eighth belonged to the estate. Comp. Statutes 510, \ 8 ; Mansfield v. Jack, 24 Maine 98.

In the sale for the taxes of 1840, the collector returns that he offered for sale one eighth of the lots, “ and was struck off to Jonas Howe for the whole.”

In the sale for the tax of 1849, the collector returned that he “ set up three eighths of the lots, which were struck off to E. Dunn for the whole.”

The lists and advertisements shew that in both cases all the land for which the taxes remained unpaid was set up and offered for sale. We are not able to distinguish this case from Ainsworth v. Dean, 1 Foster 400, in which it was decided that where, in a sale of land for non-resident taxes, an entire lot is offered for sale, and is sold, the sale is void.

Judgment that partition he made.