Russell v. Dyer , 33 N.H. 186 ( 1856 )

Fowler, J.

The defendant offered to prove that the conveyance from Daniel Burnham to the plaintiff was fraudulent and void as to creditors. The case finds the defendant to have been a creditor of Burnham. If the conveyance to the plaintiff was void as to the defendant, as it is to be taken to be for the purposes of this case, then by the levy of the defendant’s two executions on the 12th day of June, 1848, the premises, the rent of which from March 20,1849, to March 20,1850, is in controversy in this suit, became the absolute property of the defendant, subject to the right of Daniel Burnham to redeem the same. And by the levy of the balance of the second execution on the 20th of June, 1848, perfected by the sale at auction on the 31st of July, 1848, and the deed in accordance therewith, if correctly made and no question is raised upon that point, this equity of redemption from the first levy passed to the defendant, subject to the right of Daniel Burnham to redeem it. Comp. Stat., chap. 195, sec. 7, p. 469 ; Comp. Stat., chap. 209, sec. 12, p. 503. The deed to the plaintiff being void as to the defendant, and his judgment debts levied upon the property conveyed by it, the plaintiff acquired by that deed no rights in the premises covered by it, except what Daniel Burnham possessed. By the two levies, one upon the land itself and the other upon the equity of redemption from the former levy, all Daniel Burnham’s legal rights in the premises were transferred to the defendant, subject to his right to redeem those levies severally, and of course nothing remained to him, or his assignee, the plaintiff, but that right of redeeming from the two levies severally. Comp. Stat., chap. 209, sec. 13, p. 503.

The plaintiff then had the right, as the assignee of Daniel Burnham, to redeem the property first levied upon by the defendant’s executions, by paying the amount of its appraised value and the interest thereof, as he attempted to do by his tender on the 3d day of November, 1849 ; but that tender in no way affected the rights of the defendant to the premises by virtue of his second levy, if the conveyance to the plaintiff were fraudulent and void as to him. The evidence, then, proposed by the defendant, to prove that the conveyance of Daniel Burnham to the plaintiff was fraudulent and void, was competent to be received, and might become material to the defendant’s rights in this case, were the plaintiff entitled to the rents and profits of the land, unless the defendant should establish the validity of his second levy upon the right of redemption from the first.

But, admitting the validity of the conveyance from Daniel Burnham to the plaintiff, and that the first levy was vacated by the tender, and that the second was void ah initio, can the plaintiff maintain the present action for the mean rents and profits ?

The lands of a debtor are holden liable for his debts only by virtue of the provisions of the statute. At common law, there was no mode of taking lands to satisfy debts, and the writ of elegit provided by statute only gave to the creditor the right to hold the lands of his debtor, until, from the rents and profits, the debt, costs and interest were paid. Grore v. Brazier, 3 Mass. 522, and authorities.

Our present statute provides that all the debtor’s interest in the real estate levied upon shall pass by the levy against all persons whatever, if the levy is recorded on or before the return day of the execution. Comp. Stat. 501, chap. 208, sec. 12; Rev. Stat., chap. 195, sec. 12.

The act of February 15, 1791, [Laws of 1805, p. 150] provided, that “ all executions duly served upon any lands and tenements, being returned into the clerk’s office out of which the same issued, and there recorded, shall make a good title to the party for whom they shall be so taken, his heirs and assigns forever.”

The act of July 4th, 1829, [Laws of 1880, p. 101] provided, that “ all executions duly extended upon any lands, tenements or hereditaments, and recorded in the office of the register of deeds in the county where such lands, tenements or hereditaments may be situate, shall constitute the same title to the party for whom they shall be so taken, as the debtor had therein.”

By our statute, then, the creditor by the levy of his execution acquires the same estate which the debtor had in the lands levied upon ; that is, an estate in fee, defeasible on the performance of a condition subsequent.

This condition subsequent is thus set forth in the Revised Statutes, chap. 195, sec. 13; Comp. Stat., chap. 208, sec. 13, p. 501. “ Such extent shall be void, if, within one year from the return day of the execution, the debtor, or any person interested, shall pay or tender to the creditor the sum at which such real estate was appraised, with interest from the time such levy was received for record by the register of deeds.” And it is further provided, by section 14 of the same chapter, that “ the creditor, upon such payment or tender, having his reasonable charges therefor duly tendered to him, shall execute a release to the debtor of his right in such real estate acquired by such levy.”

Substantially the same provisions existed in the act of July 4, 1829, and in that of February 15, 1791. Laws of 1830, 101, and Laws of 1805, 150. In the act of 1829 it is said that upon the payment or tender, “ the extent shall be void and of no effect,” and in that of 1791, that, upon such payment or tender “ every such debtor or debtors, their heirs, executors or administrators, shall reenter into such lands and^tenements by due process of law, and be reestablished in their former estate in such lands and tenements, as if such execution had never been levied upon the same.” The act of 1791 contains no provision for the creditor’s releasing his interest in the lands levied upon.

Upon all the provisions of the statutes, then, it is clear that the judgment creditor acquires by the levy an absolute estate of inheritance in the land, subject to defeasance. While in possession under the levy, he is seized of a freehold, and his estate is as perfect and complete as if he were the absolute, unqualified owner. Upon the redemption the statute says the levy shall be void, but this evidently only means that it shall be vacated, that its effects shall be avoided thereafter. It does not mean, and cannot mean, that the creditor shall be considered a trespasser from the beginning — but only, that thereafter the levy shall be of no force or validity so far as the lands are concerned. While in possession under the levy, the defendant, in the case before us, had all the title' of the true owner in the land; all the title that Daniel Burnham ever possessed. He received the rents and profits to his own sole and exclusive use, as such owner. There was no privity between him and the plaintiff. He entered under no legal liability to account for the rents and profits, in case of the defeat of his title by redemption. The statute is silent on the subject of his accounting for the income of the premises, over and above the expenditures made; and we know of no principle of law, in the absence of all statutory provisions, whereby the absosolute owner of land, who receives the rents and profits thereof while such owner, can be made liable for those rents and profits to one who subsequently acquires his title. Nor can it make any difference that the occupation was by a sub-tenant, who paid over the rent to the defendant. It was wholly immaterial, if the defendant were entitled to the rents and profits, whether he occupied by himself or a tenant.

In Cummings & Wife v. Noyes, 10 Mass. 484, it was held that where judgment was recovered in a writ of entry, and possession was taken under it, that upon the reversal of that judgment by a writ of error, the plaintiff in the former suit was liable for the rents and profits in an action of trespass or assumpsit; but this was on the ground that he entered upon the premises under a legal liability at common law to account for the rents and profits upon the reversal of the former judgment; on the well settled principle that upon the reversal of a judgment on a writ of error, the plaintiff in error is entitled to restitution, and to be placed in the same situation he would have been had the erroneous judgment never been rendered. In the present case, there exists no such right in the plaintiff, nor any such liability on the part of the defendant.

In Robinson v. Robinson, 1 N. H. 162, decided in February, 1818, prior to the existence in this State of any statute provision on that subject, it was holden that a mortgagor could not maintain assumpsit against his mortgagee for the rents and profits of the land mortgaged, received by the latter between the time of éntry to foreclose and the time when the mortgaged premises were redeemed. This decision seems to have been based on the common law principle that, upon breach of condition, both the property mortgaged and its subsequent income vested absolutely in the mortgagee; and having received the rents and profits as his own, in the absence of any statute provision compelling him thereto he could not be compelled to refund them. A subsequent statute, still in force, provides that in such case the mortgagor need pay or tender only the excess of the debt. and interest above the amount of rents and profits received, in cSrder to redeem.

We are at a loss to perceive on what ground a judgment creditor, who by the express terms of the statute is the absolute owner for the time being of the real estate levied upon, can be liable at common law to account for rents and profits received while occupying the land levied upon, if a mortgagee were not liable to account for those he received while in possession for the purpose of foreclosure. If there be any difference in the two cases, it is clearly in favor of the judgment creditor.

The statute of Massachusetts provides that in case of a levy on real estate, the debtor may redeem within a year by paying the amount of the appraised value and interest, less the amount of the net rents and profits received by the creditor in the mean time. Mass. Rev. Stat. 467. So, also, in Maine. In Vermont, the creditor does not enter into possession until the expiration of the six months given for redemption, and if there be no redemption, the debtor is made liable to the creditor for the rents and profits of the six months. Vt. Rev. Stat. 241, 242.

In Tennessee, where land is sold upon execution, with a right to the debtor to redeem at any time within two years by payment of the purchase money and ten per cent, interest, instead of being appraised and set off to the creditor, it was held by the Supreme Court of that State in Kannon v. Pillow, 7 Humphrey 281, that no action could be maintained by the debtor against the purchaser for rent received by him of a sub-tenant during his occupation prior to the redemption.

The facts in that case were, that Kannon’s land was sold on execution to Pillow, who immediately took possession, having received a deed from the sheriff. At the time of the sale, one Perry was tenant under Kannon, and afterwards attorned to Pillow. The sale took place December 24, 1842, and the land was redeemed August 20, 1844. Pillow received of Perry the rent of $130 for each of the years 1843 and 1844, before the commencement of the action. The writ contained three counts. The first, a special count, setting forth the facts ; the second, a common count, for use and occupation, and the third, a count for money had and received. There was another special action on the case between the same parties, considered at the same time, brought to recover damages for waste alleged to have been committed by the defendant during his occupation under the execution sale. Part of the crops of 1844, at the time of the redemption in August, were ungathered, and the sub-tenant of Pillow retained the occupation of the whole land until the close of the year.

The court held that Kannon could maintain no action for the rents and profits prior to the redemption, or for waste committed during the period of the occupation under the execution sale; but that he was entitled to recover rent for so much of the land as was not covered by the growing and ungathered crops, from the time of redemption until possession was given him.

In delivering their opinion the court say: “ The purchaser becomes the absolute owner of the land, and receiving a deed and entering into possession, is entitled to the rents and profits; and the former owner has nothing but the naked right of redemption, which is irretrievably lost if it be not asserted in the time and manner prescribed by law.” * ******

“ The case is better assimilated to a sale of land with the liberty of re-purchase ; in which case the vendee, if he go into possession, cannot be hable for rents and profits, because the land is absolutely his, until the condition be performed by which it reverts to the former owner.”

The plaintiff’s argument, and his citation of authorities to show that where one has in his possession money belonging to another, an action for money had and received will lie to recover it, have no application to the present case. They are based on the assumption, for which there is no warrant, that the rents and profits of the property in controversy belonged to the plaintiff, and were received by the defendant to his use. They beg the very question in dispute between these parties. If the $1000 received by the defendant from Fabyaa had belonged to the plaintiff, it might undoubtedly have been recovered in the present form of action. But the plaintiff entirely fails to show any legal claim to the money.

If our statute, like that of Massachusetts in such cases, or like our own in the case of a purchaser of the equity of redemption of lands mortgaged, had provided that, upon the redemption by the debtor, the judgment creditor should account for rents and profits received over and above expenditures incurred and improvements made, the right of the plaintiff to recover might have been clear and unequivocal. But no such provision exists. For reasons deemed sufficient, the legislature have omitted any regulation or provision on this subject, while they have provided for the levy upon an equity of redemption. Until they shall see fit to enact some law on this subject, the debtor has no claim for rents and profits received by his judgment creditor, after levy upon real estate and before redemption.

The conclusion to which we have arrived renders any decision of the question raised in relation to repairs unnecessary. It would, however, seem, from the terms of the lease between the plaintiff and Fabyan, under which Fabyan paid the rent for 1849 to the defendant, that Fabyan could have no just claim to recover for repairs, as he expressly covenanted to keep the premises in repair. But it is not necessary to decide this point, as it does not-now arise.

As we are of opinion that this action cannot be maintained, whether the conveyance to the plaintiff were or were not fraudulent, there must be

Judgment for the defendant.