Barney v. Leeds , 51 N.H. 253 ( 1871 )

The opinion of the court upon the questions thus reserved was delivered at the August (adjourned) term, 1872, and was as follows :

Foster, J.

We regard the question presented by this case as having been practically settled by the prior, decision of the cause, although the precise question now before us was not then suggested.

The extent of the plaintiff’s execution upon the defendant’s premises was completed Sept. 22,1866, at which time, by proceedings conformable to the requirements of the law, the appraisers declared the whole estate shown them to be “ of the value of one hundred dollars, subject to the family homestead, and no more.” That is to say, they appraised the whole estate at six hundred dollars, the debtor having an exempted estate therein of the value of five hundred dollars ; and the appraisers thereupon set off the whole land by metes and bounds at that sum, in part satisfaction of the execution. That is to say, they did not set off the reversion, nor one sixth of the whole ; but they set off the whole property subject to an exempted right therein to the extent of five hundred dollars, and the sheriff thereupon delivered seizin and possession of the entire premises to the creditor.

What, then, was the position of the parties, creditor and debtor, at that time ?

The family of the debtor was entitled, as against the creditor, to so much of the estate set off by the appraisers as should not exceed in value five hundred dollars. Laws of 1851, ch. 1089,, sec. 1.

The precise quantity was capable of ascertainment, and might have been then specially assigned to the debtor by metes and bounds upon his request. Upon such request, the appraisers would have been required to set off a homestead by metes and bounds, of the value of five hundred dollars and no more. Laws of 1851, ch. 1089, sec. 3.

The legislature had fixed the value of the exemption, and the creditor was entitled to the residue. The debtor became then, and has since continued, a tenant in common with the creditor of so much and no more of the estate as was then of the value of five hundred dollars.

- At the time of the levy of the execution, he was entitled to the special assignment of his share; and evgr since then he has been and is now entitled to partition, and to hold liis share in severalty.

The extent, in quantity, of that share could only be determined by assignment under the statute, or by partition. It was not necessarily five sixths or any other aliquot part of the premises, although at the time of the levy such was deemed his fair proportion of the whole by the appraisers ; but it was so much, whether five sixths, one sixth, or any other proportion, as was worth five hundred dollars. The policy of the law gave the creditor all the rest.

If the debtor had chosen to avail himself of his right to a special assignment then, of course the creditor could not complain if, subsequently, the portion of land especially assigned to the debtor had risen in value, any more than the debtor would have the right to complain of the rise in value of the estate which remained to the creditor.

Neither would the creditor have the right to complain if, having taken the debtor’s land subject to an estate of five hundred dollars, it should turn out, upon subsequent partition, that, by reason of a diminution in value of the whole estate, the creditor had in fact secured nothing by his levy.

In the' former decision in this case we said, — “ This result [the holding that the debtor had not lost his homestead right by neglecting to make application to have it set off to him under the third section of the act of 1851] must be held, however, to have application in the present case, in which the demandant’s claim against the tenant is of greater amount than the probable value of the whole premises, including the homestead, to the condition of things existing at the time of the extent, and not at the date of the commencement of this action.

“ He took the premises subject to aii incumbrance then existing; but it would not be contrary to the equity of the case to hold that since the whole estate, including the homestead, is not of sufficient value to pay the demandant’s just claim, he shall be permitted to hold the estate discharged of the incumbrance, if the debtor has, since the levy, waived or lost in any way the homestead exemption right, then existing, and subject only to which the demandant took the entire estate,” — a predicament from which, however, we found the debtor to be free.

When the creditor, at the date and by means of the extent, takes from the debtor all but a certain interest, the share taken and the share left are fixed by law. The estate of the creditor and the estate of the debtor are then determined. That of the debtor is such a quantity of land as is then of the value of five hundred dollars; that of the creditor is the residue. The precise quantity of the estate of each is fixed by law, and is ascertainable at the option and upon the application of either tenant in common of the entire estate, for a partition of it.

The estate vests in the creditor by the act of the law, providing for a levy of the execution upon the debtor’s land; and the quantity of the estate thus vested in the creditor, and consequently the quantity remaining in the debtor, are subsequently ascertained, in the method most practicable, with reference to value at the time when the intervening right of the creditor took effect and vested an estate in him.

Any other rule would leave the quantity and value of the estate of tenants in common, which had not been fixed by definite fractional portions, always uncertain and fluctuating, while this rule is simple, logical, practical, and certain.

In accordance with these views is the suggestion of Bellows, J., in Fogg v. Fogg, 40 N. H. 285, that “ the condition of the property at the time of the levy and extent would doubtless be the guide * * * in respect to value, when the land is set off to thé creditor.”

The result of these considerations is the conclusion that, in making partition of these premises, the committee should assign to the defendant, by metes and bounds, so much of the estate in controversy as they shall find to have been of the value of five hundred dollars on the 22d of September, 1866.