Fairfield v. Day , 72 N.H. 160 ( 1903 )

"No action shall be begun against an administrator after the estate is decreed to be administered as insolvent; and no action against the deceased or his administrator pending in court when such decree is made shall be further prosecuted therein, unless by leave of the court in which it is pending. If an action is thus prosecuted and judgment is rendered for the plaintiff, the judgment shall be certified to the judge of probate, and the amount thereof shall be added to the list of claims." P. S. c. 191, s. 7. "Attachments are dissolved by the death of the defendant, in case his estate is decreed to be administered as an insolvent estate, but not otherwise, if the cause of action survives." P. S., c. 220, s. 35. In view of these provisions and of the fact that the docket of the court showed that the defendant was dead and that a petition to have the estate settled as insolvent was pending, of which the court was informed, it is difficult to account for the issue of the execution except by attributing it to accident or mistake. The ordinary course to be pursued in such case would be to continue the action to await the determination of the insolvency petition, or if judgment was rendered in favor of the plaintiff, to stay its enforcement. Had this course been taken, the plaintiff's attachments, excepting perhaps the attachment upon the equity which Day conveyed to his wife, would have been dissolved when the decree of insolvency was made, and no execution would have been issued unless it was to make the attachment of such equity available. Immediately after the plaintiff took steps to enforce his execution, the court, upon the defendant's motion, stayed further proceedings upon it with slight exceptions until the determination of the insolvency petition. So far as the changed circumstances would permit, the court did what would have been done in another form before the issue of an execution, if attention had been called to the matter. It cannot be doubted that the court had authority to make the order, if it was found that the execution was issued through accident or mistake and without fault on the part of the defendant. Warner Bank v. Clement, 58 N.H. 533; Clough v. Moore, 63 N.H. 111. It must be presumed that sufficient facts were found to warrant the making of the order. As has been previously intimated, there was abundant evidence to sustain a finding that the execution was issued through accident or mistake and without the defendant's fault.

Subsequently, while the temporary injunction was in force, it was decreed that the estate be administered as insolvent. The question then came up, what course should be taken with the execution? At the hearing upon this question, the plaintiff claimed, among other things, that he should be allowed to complete his levy upon the equity of redemption which he had attached and which Day had conveyed to his wife. The result of the hearing was that the temporary injunction was dissolved, and the plaintiff was perpetually enjoined from levying his execution upon "any property of the estate of Alonzo Day." The plaintiff was not satisfied with the order, and moved that an addition be made to it, stating that the intention was, not to include within its prohibition a completion of the levy upon the real estate attached and subsequently conveyed by the debtor, nor to affect the rights of either party to the action against the receiptor. After hearing the parties, the court declined to make the amendment. The court may have thought that the order was sufficiently explicit in regard to the completion of the levy upon the real estate attached and conveyed by Day, — that real estate so conveyed would not naturally come within the description "any property of the estate of Alonzo Day." The briefs and oral arguments of the counsel show that the defendant, as well as the plaintiff, so interprets the order. But the denial of the motion, so far as it relates to the effect of the order upon the action against the receiptor, cannot be accounted for so readily on the theory that it was understood not to have any effect. By the receipt, the signer acknowledged the receipt from the sheriff of personal property attached by him in an action in favor of the plaintiff against Day, and promised to return it to the sheriff on demand. The property attached was returned to Day after the receipt was given, but this fact did not make the receiptor a surety or guarantor for the plaintiff's debt. He would not be liable upon the receipt if Day owned the property and no judgment was recovered against him, or if the attachment was dissolved in any way. Whittredge v. Maxam, 68 N.H. 323. The property described in the receipt was supposed to be "property of the estate of Alonzo Day." If the use of the execution were not limited, and the receiptor had not returned the property to Day, he would be at liberty to return it to the sheriff on demand, and then the sheriff's duty would be to levy upon it as the "property of the estate of Alonzo Day." If the court intended that this property should not be regarded as property of Day's estate, within the meaning of the injunction, the probabilities are very strong that the plaintiff's motion in relation to that matter would have been granted. No reason has been suggested or is perceived for denying the motion, if the plaintiff's theory is correct. But, aside from this consideration, justice required that the plaintiff should be placed in the position with relation to the receiptor that he would have occupied if the accident or mistake of issuing the execution had not been made. The evidence is almost, if not quite, conclusive that this is what the court attempted to do. The injunction, by rendering the attachment perpetually unavailable, practically dissolved it, as the statute would have done under ordinary circumstances. As the property for which the receipt was given went back into Day's possession so that the sheriff is not responsible to the estate therefor, the sheriff's action against the receiptor must fail.

Assuming that the plaintiff's exception to the granting of the injunction is properly before the court, it must be overruled. This renders it unnecessary to consider the defendant's exception.

Plaintiff's exception overruled.

BINGHAM, J., did not sit: the others concurred.