Hathorn v. Corson , 77 Me. 582 ( 1885 )

Peters, C. J.

The levy, under Avhichtho demandant claims, took at the same time as one act, two parcels of a farm, the parcels lying side by side, at separate appraisals. It is contended that this is an irregularity Avhich renders the levy void. .The argument is, that the two parts would not be likely to be in the aggregate Aralued so much by the appraisers as they Avould be as a Avhole. It is apparent that such a scheme of appraisal might be prejudicial to the debtor. But we see no remedy for it beyond the right to redeem. By § 4, c. 76, R. S., when several parcels of land are taken, they may be appraised separately or together. By same section, the creditor may take parcels at different times and have different sets of appraisers. This creditor could have accomplished the same end by takings at different times. There was nothing to prevent his taking a portion of the farm in such form as he pleased, however irregular. Even if the land taken is grossly undervalued, there is no help for it but to redeem. We think it results from these privileges accorded to the creditor, that the objection in the present case can not avail the defendants. The theory of the law is expressed in the case of Bond v. Bond, 2 Pick. 385, where it is said : "The object of the statute is not that the land should be taken in payment of the debt, but that the levy on it might coerce the debtor to pay the debt. ”

Greenlief Corson, one of the defendants, pleaded non-tenure in bar, when the plea should have been in abatement. Upon demurrer to the plea because it was in bar, judgment was given in chief against the pleader. This was according to the precedents. The defendant had pleaded his chief defense, and ■ that being lost to him upon a question of law, the natural deduction would be that he had no other. The law presumes that he would not have pleaded a single defense in bar if other defenses were at the same time open to him. If a defendant had the right to plead anew as often as a prior plea of the same grade be disposed of, the litigation might be prolonged beyond endurance. Hence the rule that all defenses upon the merits should be presented at the same time. The defendant had his day, and logically acknowledged that his only defense was a technical one, not very much favored, and in that he was worsted.

He claims that he should have been permitted to plead the general issue. It was, no doubt, a matter of discretion with the judge whether he would relieve the pleader of his dilemma or not, by allowing a withdrawal or an amendment of the first plea. But it was so inconsistent for a defendant to plead no title in himself, and with the next stroke of the pen to plead that he had title, the judge thought it would not be in the furtherance of justice to allow the motion to replead. It is also clear from the facts of the case, inasmuch as the levy is held to be good, that this defendant, as well as the associate defendant, had no possible defense under the general issue. Exceptions overruled.

Danforth, Virgin, Emery, Foster and Haskell, JJ., concurred.