Goddard v. Divoll

Putnam, J.

The attachment, on which the demandant relies, was made June 26th, 1830, before the attachment which was made by the tenant. Both parties claim the demanded premises as the estate of Samuel Whitney; so that the demand-ant should prevail, if the proceedings, under his attachment and process against Whitney’s estate, were legal.

The case finds, in effect, that Thaxter was the owner of the judgment recovered by Goddard, against the estate of Whitney in the hands of Thaxter as administrator ; that Thaxter prosecuted the suit against himself, in Goddard’s name—thus representing the estate of Whitney, which was the debtor, and also representing Goddard, who was the creditor of record. In the levy of the execution also, Thaxter represented both parties. The suit was, to all intents, the suit of Thaxter against himself, though it was carried on in the name of Goddard. As administrator, Thaxter submitted to a judgment against the estate, in just the amount, which he, as actual creditor, and as agent of the nominal creditor, desired. Then came the farce of a levy; Thaxter appointing two appraisers, one as administrator, another as representative of Goddard, the nominal plaintiff. The estate of Whitney was thus formally set off to Goddard, to enure to Thaxter, and these proceedings are now put forth to defeat the regular adverse levy of the tenant’s execution on the same estate. A mere statement of the facts is sufficient to show that the demandant’s claim cannot be supported. His judgment, and the proceedings thereon, were collusive and unwarrantable. The nonsuit was properly advised, and must be confirmed.