McKeen v. Gammon , 33 Me. 187 ( 1851 )

Wells, J.

— It is contended by the defendant that the levy is void, because one of the appraisers was an uncle to the defendant’s wife. The statute requires that the appraisers should be discreet and disinterested men, and the officer in his return declares them to be such. His return cannot be controverted by the parties to the levy, but must be taken to be true. Bamford v. Melvin, 7 Greenl. 14. Appraisers are required to be disinterested, and by statute, c. 1, <§> 3, rule 22, “when a person is required to be disinterested or indifferent in acting upon any question, in which other parties are interested, any relationship in either of said parties, either by consanguinity or affinity, within the sixth degree, inclusive, according to the rules of the civil law, or within the degree of second cousin, inclusive, shall be construed to disqualify such person from acting on such question unless by the express consent of the parties interested therein.”

In accurate language relationship does not imply an interest, but the degree of relationship mentioned in the statute is regarded as an interest. And the officer by declaring that the appraisers were disinterested, does thereby affirm, that they were not within that degree of relationship, which precluded them from acting. If his return is not true, the remedy is by an action against him for a false return.

It appears that the defendant was not the owner of the estate, upon which the levy was made, in fee, but was seized of it in right of his wife. He had a life estate which could be taken for his debts. It would continue at least so long as both he and his wife might live, and after her death, if he became tenant by the curtesy. It is, in the language of the statute, “the real estate of a debtor in possession,” an estate of freehold, although it may not continue any longer than the life of the wife. The levy was made upon the estate as if the defendant were the owner of the fee simple, and the value must have been estimated accordingly. No detriment could accrue to the defendant by allowing him the value of a greater interest in the estate than he possessed. And by statute, chap. 94, <§> 10, “all the debtor’s interest in the premises shall pass by the levy, unless it be larger than the estate, mentioned in the appraisers’ description.” The declarations of the plaintiff’s counsel, upon which reliance is placed, to show that the defendant had a different interest in the premises from what is manifested by the deed to his wife, cannot be regarded as evidence. The remarks of counsel in the progress of a cause are not to be viewed as an admission or agreed statement, by which the rights of his client should be determined. Nor do we mean to be understood as saying, that the statement of the counsel, if received as testimony, would alter the case.

By the levy of the execution the plaintiff was clothed with the seizin of the premises, and he had the possession when the trespass was committed. The entry upon them was a violation of his possession, and the defendant by such unlawful act became a trespasser, and he is bound in law to pay all the damages, which the plaintiff has sustained. The premises were not in a wild and uncultivated state, but were partly cultivated, and partly covered by a growth of trees. The plaintiff, succeeding to all the rights of the defendant, is entitled to those, which are incident to a life estate. He cannot commit waste, but he is entitled to firewood, fencing, and building materials. But whatever appertains to the inheritance, excepting what the tenant for life may take, belongs to the wife of the defendant, under whose authority he entered. The plaintiff can recover no more damages than he has sustained, nor for the taking and carrying away the property of the defendant’s wife. As in the case of a lease, if the lessor fells the trees, the lessee may maintain an action of trespass against him and will be entitled to recover damages adequate to the loss of his particular interest, and also for the entry into his land. But the interest of the body of the trees remains in the lessor, as parcel of his inheritance, who may punish the lessee in an action of waste, if he fells or damages any of them. 1 Cruise, Dig. T. 3, § 16; Lyford's case, 11 Coke’s R. 48, a. It also has been held, that if the creditor injure the inheritance of the wife, where an execution against the husband has been levied upon her land, by cutting down and selling the trees, an action on the case lies against him, in which the husband must join. Babb & wife v. Perley, 1 Greenl. 6. If then the plaintiff should recover damages for the timber and wood, he would obtain what belongs to the wife of the defendant. But he can recover only the special damages, which he has sustained, for the breaking and entering his close, and for whatever has been carried away, which was necessary for the enjoyment of his life estate. If wood enough for firewood, fencing and building materials, was left in a situation as convenient and easy of access as it was before the trespass, the injury would appear to be confined to the breaking and entering upon the plaintiff’s close. Unless the parties agree upon the damages, which are to be assessed upon these principles, they can be settled by a jury.