Gault v. Hall , 26 Me. 561 ( 1847 )

The opinion of the Court, after a continuance nisi, was drawn up by

Whitman C. J.

The motion made to dismiss this action was properly overruled. The defendant appeared in the District Court, and pleaded, and the plaintiff demurred to his plea. The adjudication was, that the plea was bad. From that judgment the defendant appealed to this Court; and of course recognized to prosecute his appeal with effect. After so doing, on coming into this Court, a motion by him to dismiss the action from this Court could not be entertained. lie should not. have pleaded to the action in the court below till he found one properly before the court there ; and assuredly he should not, till such was the case, have entered into a recognizance to prosecute his appeal with effect, which required that he should enter the case here, and produce copies of the case, and file the same here.

The report of the presiding Judge brings before us all “the matters of law involved” in the case. And a default having been entered by consent, it is to be removed, and the cause is to c; stand for trial; provided the whole court shall be of opinion, that the action cannot be maintained.” We are to understand by this, probably, that, if the action is not sustainable upon the evidence as now presented, it shall stand for trial upon further evidence to be adduced.

In the first place it may be remarked, that, upon a new trial, if one is to be had, there should be an issue joined. None appears to have been joined at the former trial. A special plea was filed by the defendant, denying that he was tenant of the freehold in the premises demanded ; and the plaintiff tendered an issue upon that fact; and, if it had been joined, there would have been no other question to have been tried, but whether he was so or not. In such case the defendant could not have made any objection to the title relied upon by the plaintiff. The only question would have been, whether the defendant was a deforciant of the plaintiff. On trial it might, •perhaps, have been proved, that he was in possession, claiming in right of his wife, and so of a life-estate ; or it might have been proved that he was not tenant at will, as in his plea is pretended, under the heirs of Matthews; but was in as a wrongdoer, denying their right. In one or the other of these inodes the issue, if it had been joined, might possibly have been determined against him. But these defects upon a new trial, if one should be granted, may be cured, and new pleadings may, by leave of Court, be filed presenting a new issue.

But the case seems to have proceeded to trial, by tacit consent, upon questions involving the titles of the parties generally ; and the report presents the case accordingly; and the arguments of counsel have been elaborate in reference to such points. It will therefore be useful and proper, with a view to future proceedings, to proceed to consider the points connected with a final disposition of the cause.

The first piece of evidence offered, and relied upon by the plaintiff, is a levy upon real estate, by virtue of an execution in his favor; and against the defendant; and his right to recover, in the first instance, must depend on its validity. The first objection made to it is, that the defendant, the debtor in the execution, was not duly notified to choose an appraiser of the estate. The officer, who made the levy, certifies, that the debtor was duly notified for the purpose, and neglected to choose one. He states, however, that he notified him by leaving a written notice at his usual place of abode. To be duly notified it must be understood, that the place where the notice was left was one in which it could be believed to be most likely to be received by him in sufficient season. Otherwise the return would not be true, that he duly notified the debtor; nor could he fairly return that the debtor had neglected to make the choice; and officers’ returns are to be presumed to be in accordance with the truth. This objection therefore is not sustainable.

The next objection urged against the levy is, that the setting off was made with the exception and reservation of the granite on the premises, and liberty to take the same off. This, in the officer’s return, is said to have been so done because, as stated by the creditor, the debtor had previously sold it. If there had been such a sale the levy might well be upon the residue of the debtor’s interest in the land. If in fact there had been no such sale, the levy could not be deemed to have been well made. In such case there could be no authority for any such exception and reservation ; and by the making of it, if the residue of the estate could pass under the levy, it would necessarily be attended with mischievous consequences to the debtor. It might remove him from his farm at a valuation greatly depreciated by the exception and reservation, when, in consequence of such a carving and severance, the reservation would be of very little value to him. The statute authorizing levies never contemplated such a splitting up of the interests in real estate. When it can be taken entire it must be so taken, if taken at all. If practicable, according to the express language of the statute, it must be taken by metes and bounds. It did not appear at the trial that any such previous sale had been made by the debtor; and the officer has not returned it as a fact, that such was the case. There was, therefore, no reason to presume it. Under such circumstances it would seem to be proper that the plaintiff, in order to support his levy, should be required to come prepared to show that such previous sale had been made. That not having been done, the title, depending upon the levy, was defectively made out. But upon a new trial this defect may, perhaps, be supplied by proof of such previous sale.

But, if on a new trial this difficulty should be obviated, we will proceed to consider whether he would not meet with another, quite insurmountable. As to the deed from Matthews to the defendant, it may be stated at once, that nothing passed by it. It was to take effect not till after the decease of the grantor and his wife, till then the possession was to be withheld. It was not a deed of bargain and sale, as there was no valuable consideration for making it, and none is expressed in the deed as having been received. It could not, therefore, operate as a covenant to stand seized to uses, so as to convey an estate in futuro; for the defendant was not of the same blood with the grantor, Wallis v. Wallis, 4 Mass. R. 135; Pray v. Pierce, 7 ib. 381; Parker v. Nichols, 7 Pick. 111; Gale v. Coburn, 18 ib. 397; Brewer v. Hardy, 22 ib. 376; Jackson v. Sebring & al. 16 Johns. R. 515; Rogers v. Eagle Fire Co. of N. Y. 9 Wend. 611; Jackson, &c. v. John and Mary Delancy, 4 Cowen, 427; Jackson v. Cadwell, 1 ib. 622; Wilkinson v. Tramer, 2 Wils. 75.

The deed to Mrs. Hall stands upon a basis equally unfounded. She was not of the blood of the grantor; nor can the consideration be regarded as arising from marriage; and the deed is without any valuable consideration expressed in it as having been received ; and is to take effect, if at all, in futuro. The language of the deed is altogether that of the grantor. It imposed no obligation upon her; and being a feme covert she could assume none. The case of the Eagle Fire Co. v. Delancy, is much in point. The grantee there was a son-in-law of the grantor. The consideration expressed therein was, as to a part of the estate, precisely like that contained in the deed to Mrs. Hall. It was not, as to that part, to take effect till the decease of the grantor. It was not considered as a deed of bargain and sale, for the want of a consideration expressed in it. It was riot considered as having been made in consideration of marriage, although the grantee’s wife was the daughter of the grantor. No such consideration was alluded to in the deed. In the case at bar there can be no pretence for blood relationship, the grantee being but the daughter of the grantor’s wife, by a former marriage ; and there is no ground for considering the conveyance as in consideration of marriage, for no such consideration is expressed; and there can be no pretence, that any marriage was had in consequence of it, or with reference to it.

The case of Jackson, &c. v. Sebring, in the Court of Errors in N. Y., was disposed of upon an elaborate opinion delivered by the late Chancellor Kent, containing a review of all the authorities up to that time. His opinion is lucid and conclusive. Some of the cases cited from Massachusetts are, however, not at all points in accordance with it. But as far as those opinions are applicable to this case the variance is not material. All agree, that to constitute a bargain and sale there must be a valuable consideration to support it; and, if to take effect in futuro, there must be proper covenants ; and a blood relation between the parties to the deed ; or the consideration of marriage, to raise a use first for the bargainor, and after-wards for the bargainee. In the case before us there was no valuable consideration for the deed to Mrs. Hall, no blood relation between her and the grantor, and no consideration of marriage expressed or inferable.

Default taken off and new trial granted.