Ladd v. Dudley , 45 N.H. 61 ( 1863 )

Sargent, J.

In this case no question is made concerning the validity of the set-off to the defendant, of his homestead in the premises in question upon the execution in favor of the Granite State Bank. This set off would be good as against all debts contracted after the homestead law went into effect. But the plaintiff claims that his debt was contracted prior to the day when the homestead law took effect. And hence that there is no exemption as against his debt.

One of the original notes held by plaintiff is admitted to have been given prior to that time, but question was made as to the date of the other note, the one for $500. The evidence was conflicting as to whether this note was dated January 1, or January 2, 1852. But the verdict being taken by consent for the plaintiff, it is to be assumed, under the instructions given, that the jury found it to have been dated January 1st.

Section 5 of the homestead law, Comp. S. 476, provides that "the provisions of this chapter shall not extend to any judgment rendered on any contract made before the first day of January, 1852, or judgment rendered on any note or mortgage executed by the debtor and his wife,” &o. Now, if the affirmative provisions of the law had been general without any limitation as to time, and this were the only provision limiting or restricting the operation of the law, there would be no doubt that the homestead exemption would take effect and be in force as against all contracts made on the first day of January, 1852. But this is not the fact. The affirmative provisions of the law, instead of being general, are limited as to time.

Section 1 of the same law provides that " the family homestead of the head of each family shall be exempt from attachment and levy or salé on any execution on any judgment rendered on any cause of action accruing since the first day of January, A. D. 1852,” &c. There being nothing in the affirmative provisions of the law, which gives it force until after the first day of January, there can be nothing in the negative provision as contained in sec. 5, which can make the law effectual on the first day of January. In order to have been perfectly consistent with each other, section 1 should have exempted the family homestead from attachment and levy, or sale, on execution on any judgment rendered on any cause of action accruing on¡ or since the first day of January, or if the first section remains as it is, the 5th section should have provided that the laAv should not extend to any judgment rendered on any contract made on or before the first day of January. As the t\A'0 sections are Avritten the first day of January Avas left out. But as the affirmative provisions of the laAv only prOAÚde for a homestead as against all contracts made since the first da3>--of January, Ave must of course hold that these proAÚ'sions do not apply to a contract made on that day. The ruling of the court on that point aauis therefore correct.

The book of records was properly admitted. Both parties testified in relation to the date of the note in question, and both had examined.the record to ascertain the date of the mortgage from Palmer to Dudley, which was said to bear the same date of the note in question, and having both thus examined the record in relation to this date and refreshed their recollections thereby, they both testify, but they disagree; one SAvears that as shown by this record the Palmer mortgage Avas dated the first, and the other that as shown by the same record, it Avas dated the second day of January. They had both undertaken to swear by this record and yet disagreed as to Avhat the record showed, and the record, being thus admitted by both parties to shoAV the true date of the note, became material to sIioav Avhich Avas right.

The two notes which were the plaintiff’s original cause of action Avere both dated, therefore, before the homestead exemption laAv took effect. Baií these notes had been taken up, and a new note given for the amount of both, and instead of Palmer’s indorsement on the larger of the original notes, Robinson has signed the neAv note as surety, still Ave think it must be regarded as the debt of Dudley, not as a neAv debt, but the old one, and the same debt as before. That the homestead exemption does not exist in such a case is settled in Strahan v. Foss, 42 N. H. 43, and cases cited. But it would exist in favor of Robinson, the surety on this note.

Nor does it make any difference that this 8500 note was original^, as between Dudley and Palmer, an accommodation note. Palmer had raised the money thereon of Dr. Kittredge by indorsing it himself, and the plaintiff, within about a month of its date, had purchased the same of said Edttredge. Now, however the fact that this was an accommodation note might have effected the note or a suit upon it as between the original parties, Story Prom. Notes, sec. 190, .and cases cited, yet when the note passes into other hands for value, it stands like any other note and takes effect from its date. Nor does it make any difference that the purchaser knew that it was originally an accommodation note; it is good in his hands notwithstanding such knowledge. And even though he may have purchased it after, it became due with such knowledge, that alone is no defence to the note. Story’s Prom. Notes, sec. 194. This note would draw interest from its date and the statute of limitations would be a bar in six years from its date, and it would be treated in all respects like any other note of the same date and terms, after it was put in circulation.

We think the amendments to the officer’s return were properly allowed. There was sufficient in the original return to amend by, enough to show that all the requirements of the statute had probably been complied with. This would be sufficient to authorize the amendments even Avhere third persons had acquired an interest after the levy, which was not the case here. Whitten v. Varney, 10 N. H. 291; Smith v. Knight, 20 N. H. 17. There is no objection on account of the lapse of time in this case. Avery v. Bowman, 39 N. H. 393. Nor have the wife or children acquired any rights since the levy, nor had they any at the time as against the plaintiff’s claim. The only question is as to the right to amend the return as between the original parties, and on that question there is no doubt. Nor can the objection that no entry by plaintiff was proved after the set off, prevail.

The officer delivered seizin and possession of the premises in question to the plaintiff at the time of the setoff, as appears by the officer’s return, and the plaintiff upon such return, acknowledged that he had received such seizin and possession, and the execution and return are properly recorded, efec., and the statute provides that all such debtor’s interest in such real estate shall pass by the levy as against all persons if the proceedings are all regular, and the levy is recorded on or before the return day of the execution. Revised Statutes, ch. 195, secs. 11 and 12; Comp, S. 501. When lands are properly set off, and seizin and possession given to the creditor upon the land, and the whole is perfected by a proper record and return of the execution, this must give the creditor the right, without any thing further done, to bring his writ of entry.

Judgment on the verdict.