Lord v. Locke , 62 N.H. 566 ( 1883 )

The facts reported fully warrant the finding of the referee that the sale of the personal property of Charles Lord to the plaintiff, on December 26, 1878, under which the plaintiff claims, was not a valid sale as against subsisting creditors, not only from want of a change of possession of the property, but also by reason of actual fraud, in being intended to hinder, delay, and defeat the creditors of Charles Lord.

The record and proceedings before the justices, on the application of Charles Lord to take the oath for the relief of poor debtors, were neither an estoppel nor were they competent evidence in this case. The plaintiff was a stranger to those proceedings. He was neither a party nor a privy in estate to the judgment of the justices. He claims title to the property in controversy from Charles Lord prior to that judgment, and consequently he is not bound by it; and as he is not bound by it the adverse party is not bound, and there is no estoppel, because estoppels must be mutual. Hunt v. Haven, 52 N.H. 162; Chamberlain v. Carlisle, 26 N.H. 540.

The alias capias execution was legally and properly issued. The first execution upon which the arrest had been made had been duly returned and was no longer operative, and in case the debtor failed to take the oath and surrendered himself at the jail at the expiration of the year, the alias execution would be necessary for his detention. Woodham v. Chase,47 N.H. 58. Under our statute the creditor may pursue the person of the debtor and his estate at the same time. "Whenever a debtor is committed to prison on execution, the creditor, on the return thereof, may have a further execution against the property of the debtor, notwithstanding the debtor is not discharged; and upon the satisfaction of such execution the debtor shall be discharged." G. L., c. 235, s. 11. Upon taking the oath for the relief of poor debtors, on March 24, 1882, the person of the debtor became forever after exempt from arrest or imprisonment on that debt, but his estate still remained liable for the same. G. L., c. 241, s. 11. The capias execution, legally issued on November 11, 1881, against both the person and the estate of the debtor, still remained in force. It had never been levied nor used; and the fact that the person of the debtor had become exempt from arrest did not destroy its efficiency as against his goods and estate. Perley, J., in Chadbourn v. Bank, 24 N.H. 333. The execution being a sufficient justification for taking the property, was a sufficient justification for its detention and sale, although the sale was after the return day of the execution. Freem. Ex., s. 106.

As the plaintiff is not entitled to damages, the price at which the property sold on execution is immaterial. If it was material, it might be a pertinent inquiry whether the plaintiff is in a position to complain of the inadequacy of price resulting from his own interference with the sale.

Judgment for the defendant.

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