text:
    Ten Eyck v. Wing.
    Debt on judgment recovered in 1824. Plea, statute of limitations. Replication, that in Novi 1882, a pluries execution was taken out on the judgment; that on the lYth of the same month defendant filed a bill in chancery and obtained an injunction, restraining proceedings on the execution; that on 17th Nov. 1885, it was stipulated between the parties in the chancery suit, that the injunction be dissolved, that the pluries execution be set aside, that there be a reference to a master to take testimony in the chancery suit, and to state an- account between the parties, to state the amount due on the judgment,- and ascertain the amount of any and all legal and equitable set-offs to the judgment. That testimony was taken under the stipulation by both parties; that the master made his report in January, 1888, and that in March, 1846, the case was heard in the court of chancery, and a decree made dismissing the bill with costs. On demurrer, ike replication was held bad, as the case clid not come within the exceptions of the statute of limitations, and the replication did not show such an acknowledgment of the debt as would warrant the implication of a new promise.'
    Where a new promise is set up to take a case out of tlxo statute of limitations, it ought to be proved in a dear and explicit manner, either expressly, or by such an unqualified acknowledgment as authorizes its implication.
    The acknowledgment should contain an unqualified and direct admission of a present subsisting debt, which the party is liable and willing to pay, and be unaccompanied by any circumstances or declarations which repel the presumption of a promise, or intention to pay.
    Case" reserved from Wayne Circuit Court. íhe facts appear in the opinion of the court.'

      O'Flynn, for plaintiff.

      Fraser, for defendant.
   By the court,

Miles, J.

The plaintiff declared in debt upon a judgment recovered in the supreme court of the then territory of Michigan, on the 25th day of September, A. D. 1824. The defendant plead tih$t ¿be action was not commenced within eight years next after tbe rendition of the judgment. To this "the plaintiff replied specially, that on the 5th day of November, 1832, he sued out a pluries execution upon the judgment, and delivered the same to the sheriff of the county of Conroe, to be executed;' that before the same was executed, to wit, on the l^th day of November in. the same year, the defendant filed a bill in the same court sitting in chancery, against the plaintiff, and for reasons therein set forth, prayed for and procured to be issued and served upon the plaintiff an injunction out of said court, inhibiting him from all further proceedings upon the execution so issued, until answer filed and a final hearing, and that a subpoena to 'appear and answer was served upon the plaintiff (the defendant in the bill), who caused his appearance to be entered accordingly. That on the l^th day of November, 1835, a stipulation in writing was entered into between the parties to the chanceiy suit, by which it was agreed that the injunction bo dissolved, and that the pluries execution be set aside, and that an order be granted by any judge of sard coiu't dining the then vacation to that effect; reserving to the defendant in this case all right to set aside the execution, which was antecedent to the pluries execution, and reserving to the plaintiff all right to amend the same and the returns thereto, or any irregularity in issuing the same; and further, that the chancery suit be referred to a master to take testimony on both sides, and to state an account between the parties, to state the amount due on the judgment, and to ascertain the amount of any and all incumbrances upon certain property in the bill mentioned, and also to ascertain the amount of any and all legal and equitable set-offs.to the judgment; that the testimony so taken should be read on the hearing of the cause, Subject to all legal objections and exceptions, and that the report of the master should be subject to all legal exceptions, and that the cause should be submitted to the court upon final hearing, either upon written briefs at the then next term, or upon argument thereafter. The replication further states that the testimony of both parties was taken before a master, who discharged and performed his duty and made a report’ of his doings in -all things, as required by the stipulation, to the said supreme court, on the 9th day of January, 1838, and that in the term of March, 1846, the pleadings and proofs in the cause and the report of the master were duly submitted to the court of chancery for the state of Michigan, ■ for final decision, and that that court, after hearing counsel, made a decree dismissing the bill with costs to the defendant therein, and that the decree is still in full force.

The defendant has demurred generally to this replication, and the plaintiff has joined in demurrer. The question reserved for the opinion of this court is, as to the sufficiency in law of the facts set forth in the replication to avoid the statute of limitations.

The defendant insists, that the only question presented by the pleadings is, whether the plaintiff has brought himself within the exceptions or saving clause of the statute, and that this clause has been strictly construed by courts of justice, and never extended by equity.

As we understand the argument of the plaintiff’s counsel, the following are the main propositions sought to be established by him:

First, that he was prevented by the injunction from sooner bringing suit; and, Secondly, that by the stipulation there was a sufficient recognition of the existence of the debt,- and acknowledgment of the defendant’s liability to pay, to take the case out of the statute.

Without discussing the question whether a new promise can be replied to a plea of the statute in an action of debt upon a judgment, we shall proceed at once to consider the points made by the plaintiff; and as this is upon those points a case' of the first impression in this court; we can only refer to the decisions of other courts as illustrative of the principóle upon which the statute should receive a construCtion.-

The language of the statute is general, and provides that “All actions of debt or scire facias on judgment shall be commenced and sued within eight years next after the rendition of such judgment, and not after.” Laws 1833, p>. 571.-

By the 9th and 10th sections there are savings in the cases of the' arrest and reversal of judgments, of judgments on plea in abatement ánd upon dehiurrer, and in favor of infants, femes covert, persons imprisoned or beyond seas, and where a person shall be without the territory at the time the cause of action accrues, and shall not have known property or estate within the territory liable to attachment; giving the person entitled to the action a right to bring the same within the time limited, calculating from the time the impediment shall be removed in cases of infants, &c., and from the time of the return of the party in the latter case.-.

All these cases so exceprted are clearly within the general terms of the act, and but for the saving clause would, upóon a reasonable construction, be deemed/within its provisions.

General words t in a statute must íeceive 'a general construction,- aM if there be no express excepótion, the court can create none. Demarest v. Wynkoop, 3 John. Ch. Rep. 142.

Chancellor Kent, in the opinion in this cause, says it was agreed without contradiction in Stowell v. Zouch, Plowd. 369 b. 371 b., that the general provisions in the statute of fines would haye barred infants, femes covert, and the other persons named in the proviso, equally with persons under no disability, if they had not been named in the excep. tionor saving clause; and that in Dupleix v. Roven, 2 Vern. 540, the Lord Keeper thought it very reasonable that the statute of hmitations should not run where the debtor was beyond sea, but as there was no saving in the case, he could not resist the plea of the statute. The statute of 21 Jac. 1 had no saving of this description. The chancellor also refers to Beckford v. Wade, 17 Ves. 87, in which last case reference is also had to 2 Salk. 420, and 10 Mod. 206.

We do not understand the plaintiff as insisting that he comes within the letter of the provisions of the 10th section, but he contends this section should, by an equitable construction, be extended so as to im plude a case where a plaintiff has been delayed by an injunction out of chancery.

Our statute is substantially a copy of the act of 21 James, with some additions, to the 3d and 4th sections of which the 7th and 9th sections of ours correspond.

Certain cases have been held to be within the equity, though not within the letter of the 1st and 2d provisos of the 4th section of that act; as where the action is brought within six years, and the plaintiff dies before judgment, his executor or administrator may have a new action within the equity of the first proviso. See Wilkinson on Limitations, 43, and the cases there cited.

The reason assigned for this is that the latter, though in form a new action, is in substance but a continuation of the old one. The plaintiff is in no default, and it is not intended that the statute meant to bar Where the party has lost his trial by the act of God, if the action is renewed in a reasonable tune. In this state, this is now provided for by' statute. R. S. 1838, sec. 10, p. 577, re-enacted R. S. 1846, sec. 10, p. 601. But this is not extended to a case of nonsuit, which is either by the voluntary act of the party or tho opinion of the court against him, and the suit commenced afterwards is consequently a new suit. Angel on Lim. old ed. 328, and the case there cited. It is to be observed, jhat in the case of the death of a party, the statute is held not to operate, and the 4th section is only referred to by way of analogy, in determining what shall be a reasonable time, so it can scarcely with propriety be said that this is an extension of the provisions of that section, though such is the language used. All the later cases insist upon a strict construction, and are opposed to such extension. 2 Gall. 319; 20 John. Rep. 46; 3 Pet. Cond. 54. So if an action brought by a feme sole abate by her marriage, she and her husband may have a new-action. Willes 260, note.

It may be remarked, that the same argument used against a party jn case of a nonsuit, that he should not begin again after six years bfe, cause of his voluntary act in abandoning his suit, failed in this case, it being urged on error to the King’s Bench, that the suit was abated by the Carriage, the voluntary act of the party; that the statute of limitations was a law of peace for the security of property, and ought not to be extended by equity. The only reply of the court to this argument appears to have been, that the statute had received a favorable construction. 2 Saund. 63 h, note; Huntington v. Brinkerhoof, 10 Wendell 278, where the same equitable construction is given to the New-York statute, in the case of an administrator.

In the case of Barker v. Millard, 16th Wendell 573, Bronson, J. says the equity of the statute has never been extended far enough to aid a party where the commencement of his suit has been stayed by injunction out of chancery;" that he has met with no case where it was held that an injunction out of chancery would suspend the running of the statute ; that the contrary doctrine is strongly implied in many cases; that the party to a suit in chancery has often applied to that court to restrain the defendant ñom setjting up the statute in an action at law; and hence, he argues, if the penclency of the injunction would be a good answer to a plea of the statute of limitations, such an application would not have been necessary. He refers to 1 Vern. 74; 2 Atk. 1; Gilbert v. Emerson, 2 Vern. 503; Bac. Abr. Limitation of Actions, E 6; Blanshard on Limitations 164; Vin. Abr. Lim. T.

In that case as in this, the statute had commenced running before the injunction was obtained, and 'counsel insisted that the period of time during which a suit was stayed by the injunction should be Abducted from the statute.

The 5th sec. of the New-York Law (1 R. L. 186} under which this case was decided, corresponds with the 3rd and 4th sections of tha stat. 21 James.

In the case at bar the injunction restrained the plaintiff from proceeding on the pluries execution only, in no way affecting or hindering him by its mandate from bringing suit upon the judgment.

When the statute once begins to run, no subsequent disability will restrain it. On this subject the decisions are uniform. Wilkinson on Limit. 51, and the cases there cited. Even insanity has been held not to obstruct its progress. Doe v. Jones, 4. T. R. 301, by Lord Kenyon, Chief Justice. In Demarest v. Wynkoop, 3 John. Ch. Rep. 129, this subject is treated by the late Chancellor Kent in his usual clear and forcible manner, Speaking of cumulative disabilities he says, “ The party can only ayail himself of the disabilities existing when the right of action first accrued. If disability could be added to disability, claims might be protracted to an indefinite extent of time, and to the great injury and oppression of the country. It would be impolitic as well as contrary .to established rule, to depart from the plain meaning and literal expression of the proviso in the statute of limitations.”

In % case before us, the bar was complete in September, 1832, and the injunction was not sued out until the November following.

The next point is, that by the stipulation there was a sufficient acknowledgment of the debt to take it out of the statute. For the puipose of determining this point, if does pot seem necessary to follow counsel in the history 'which has been given of the origin and progress of the idea that the effect of the statute might be prevented by a new agreement. In Clementson v. Williams, 3 Pet. Cond. Rep. 38, Chief Justice Marshall says, “ they have gone full as far as they ought to be carried.”

It was argued in the supreme court of Ngw-York as late'as 1833, that the statute of limitations is a defence not favored by the courts. With the exception of the cases alluded to, and to which we shall hereafter have reference, there is no warrant for this idea, though it would seem to have taken strong hold upon the minds of some judges.

It is true, at common law the plaintiff has the liberty to bring his j action when he will, and this statute may have been considered to be in restraint of that right, but the great amount of injustice which has" been prevented by it, more than counterbalances any supposed infringement of existing rights by its passage.

Lord. Holt, Clr. J., said it was one of the best of statutes, and the pleading thereof no disparagement to any body. Wilmot, J., said it was a noble, beneficial act. Green v. Rivett, 7 Mod. 12; King v Walker, 1 Wm. Black. 287.

It has also been said that the statute (on which the security of p.11 men depends) is to be favored. Green v. Rivett.

Lord Kenyon was a strong advocate for the uniform construction of the statutes of limitation, which were, he said, of the greatest import-, anee, as they are statutes of repose. Doe v. Jones, 4 T. R. 308.

. Mr. Sergeant Williams, in 2 Saund. 64 a, note 6, says, “ although it will now and then prevent a man from recovering an honest debt, yet it is his own fault he postponed his action so long.” It has the constant effect of shutting out unjust claims, founded on experiments made to take advantage of carelessness or misfortune, on the chance of vouchers being lost or mislaid. King v. Morrall, 6 Price’s Exch. Rep, 31, per Garrow, Baron.

Saunders says, the prosecution of actions arising upon contracts not in writing under seal, a 1'ong- time after they first accrued, was often a great occasion of peijury in witnesses, and oppressive to defendants, and that to avoid this was the object of the statute.

In Olementson v. Williams, before referred to, Judge Story says the statute is now considered to be entitlecj to the same respect with other statutes, and ought not to be explained away. The policy of the statute, says Oh. Kent, is to quiet possession and extinguish dormant plaims. 3 John. Ch. Rep. 139. To this might we add, that thestat. pf James commences with these words: “'For quieting of men’s estates and avoiding suits, be it enacted,” &c. See copy stat., appendix to Angel on Lim. p. 3.

It is now, says Greeiileaf, regarded by the courts as a wise and beneficial law, not designed merely to raise a presumption of payment of a, just debt, from lapse of time, but to afford security against stale deqnands, after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. 2 Greenl. Ev. see. 440, p. 354.

This is the language of Mr. Justice Story, in Bell v. Morrison, 1 Peters’ Rep. 360.

Tliis view of the statute is in accordance with what we conceiye to b§ the duty of every court, to wit, so to construe it as to give it effect, instead. of casting about for an apology to evade it.

We are perhaps not prepared to say with Barb'n Parlce, 14 Mees. & Weis. Y44, that a certain train of decisions allowing very slight acknowledgments to take a case out of the statute, was a disgrace to the law; but we can say with him, we trust there is no danger of our falling into the same error. The consequence of this rulé of construction is, that whenever a new promise is set up to remove the bar of the statute, it ought to be proved in a clear and explicit manner, either expressly, or by such an unqualified acknowledgment as authorizes its implication. 1 Peters’ Rep. 362; Cambridge v. Hobart, 10 Pick. 232; 8 id. 206; 2 id. 368. And although it is held no set form of words is requisite to constitute a sufficient acknowledgment, and that it may be inferred from facts without words, Whitney v. Bigelow, 4 Pick. 10, yet the acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt which the party is liable and walling to pay, and be unaccompanied by any circumstances or declarations which repel the presumption of a promise or intention to pay. A’Court v. Cross, 3 Bing. 329. If there be anything said at the time of the

acknowledgment to repel the inference of a promise, the acknowledgment will not take the case out of the statute; the acknowledgment must be consistent with a promise to pay. 3 Serg. & Raw. 211; 9 id. 128; 14 id. 166; 11 John. Rep. 146; 13 id. 288; 15 id. 514. The rulé laid down and established by these cases in the courts of Pennsylvania and New York, has received the entire approbation of the supreme court of Massachusetts. 2 Pick. 368; 4 id. 110; 8 Mass. 133; 13 id. 453. In this last case the court held that the vote of a town to settle all disputes with the plaintiff did not amount to an admission that anything was due. See also 5 Pet. Cond. Rep. 480; 3 Greenleaf 97; 4 id. 41, 159.

Any other course would open all the mischiefs against which the statute was intended to guard innocent persons, and expose them to the dangers of being entrapped in careless conversations, and betrayed by peijuries. This is the conclusion which the supreme court of the United States came to in the case of Bell v. Morrison, after the question had been before the court in Clementson v. Williams, and after a deliberate examination of all the authorities, English and American, when the case of Wetzell v. Bussard, 11 Wheaton 309, was before them. They say, we adhere to the doctrine thus stated, and think it the only exposition of the statute which is consistent with its true object and import.

This conclusion is upon the principle that the acknowledgment or promise is deemed a new contract, springing out of and supported by the original consideration. Mr. Justice Story’s argument is, that the acknowledgment revives the debt, that its revival supposes it once extinct, and that the act which revives it is what essentially constitutes its new being and is inseparable from it. It stands not by its original force, hut by the new jtromise, which imparts vitality to it. Proof of the latter is indispensable to raise the assumpsit on which an actio n can be maintained. It was this view of the matter which first created the doubt whether it was not necessary that a new consideration should he proved to support the promise, since the old consideration was gone. That doubt has been overcome, and it is now held that the original consideration is sufficient, if recognized, to uphold the new promise, although the statute cuts it off as a support for the old. What, indeed, would seem conclusive on this subject is, that the new promise, if qualified or conditional, restrains the lights of the party to its own terms, and if he cannot recover by those terms he cannot recover at all.

This position is well sustained by reference to authority, and is to us perfectly satisfactory, as being the true exposition of the principle upon which cases of this character should he decided.

In Bell v. Morrison, the question was presented by a bill of exceptions upon error to the opinion of the circuit court, in excluding certain evidence tending to show a new promise, from the consideration of the jury, and one point raised was, whether the evidence so excluded was competent in point of law, to have been left to the jury to infer a promise sufficient to take the c¡jse out of the statute of limitations. Such we apprehend is the inquiry here: can we from the facts stated in this replication legally infer a sufficient promise for the purpose ?

We could the better determine how far this stipulation is to produce the effect contended for, if the nature and object of the hill were more fully stated in the replication. So far as does appear, it would seem to have been solely for the purpose of the injunction to stay proceedings m the plwies execution, but upon what statement .of facts is not shown.

It Cannot be inferred from tbe stipulation to take and state an account; that a decree for the payment of any balance was intended by the parties,- unless the stipulation was to have the effect of a cross bill, which cannot be insisted; and any sueh presumption, if it coxild arise, is rebutted b}r the Othe'r portions of the stipulation, which reserves to the defendant here the right (in the law court we suppose) to set aside the execution, which was antecedent to the pluries execution, and reserving to the plaintiff the right to amend “the said executions and the returns thereto, or any. irregularity in issuing the same.”

It is difficult to give any meaning to' this language, except upon the supposition that the plaintiff retained the right to proceed upon the judgment in the law court, if he could. It must not he forgotten, however, that this is accompanied hy a claim for the amount of incumbrances upon certain property in the bill mentioned,- and of set-offs against the judgment It is true the amount of these does not appear. That amount was to be ascertained by the master 5 whether more or less than the judgment cannot be known, nor what disposition is to he made of the case in chancery in either event. The stipulation is silent as to that.

But is there,- in all this; any acknowledgment of present indebtment? It is an admission that a judgment had been rendered, but at the sama moment the party insists upon a counter daiim He had filed a hill to get rid of an execution upon the judgment. The object of the bill had so-far been accomplished: the execution-ivas set aside by the stipulation, and the injunction dissolved, or agreed to be dissolved; for all practical purposes it might be considered as dissolved; and if the plaintiff could claim that the stipulation to submit the matter to the Court of chancery is sufficient; from which to presume á promise to pay any balance which might in that court be found due to him, the answer to that is, that no such determination has been had. The bill appeal's by the replication to have been dismissed, and the contingency has never happened.

We cannot perceive in the stipulation any agreement on the part of the defendant to waive any benefit to arise from the running of the statute of limitations. It appears to have been made under such circumstances, and contains such an assertion of a counter claim, as to repel any presumption of a promise to pay to be raised from these facts.

Although we are not by the stijmlation enabled to see clearly what was the object of the parties, yet there is no ambiguity in the language' used, so as to make a reference to a jury necessary. Lloyd v. Maund, 2 T. R. 760. But if we could decide this point for the plaintiff, has not the claim been again barred before the commencement of this suit, which was instituted on the 27th day of May, 1846?

Upon the argument, a labored and ingenious attempt was made to sustain the position, that the injunction was not in fact dissolved until the determination of the suit in the April term, 1846, of the chancery of the state; but it has failed to convince the minds of this court, when placed in opposition to the language and terms of the stipulation. The replication states that it was agreed that the injunction be dissolved, that the plurics execution bo set aside, and that an order be granted by any judge of the supremo court, during the then vacation, to that effect.

If we admit that this order was necessary to perfect the record, still no court of chancery would ever punish for disobedience to its writ, after the existence of such an agreement was made known.

Again: it does not appear the injunction was for any purpose othef than to restrain proceedings upon the plnries execution. That execution was by the stiqmlation set aside. There was no longer anything as the subject of the injunction, and it was not possible to incur a coik tempt in reference to it.

It was, however, strongly insisted, that if the injunction was dissolved by the stipulation, still the plaintiff could not proceed at law upon his judgment, either by execution or by action, for the reason that he had stipulated to await the decision in chancery before proceeding upon the judgment; that the defendant liad by the stipulation all the benefit of the injunction, until the case was disposed of in chancery; and that it was designed to stand in place of the injunction, insomuch that ths plaintiff could not proceed at law.

We do not thus look upon the stipulation; but if this was the effect of it, can the plaintiff complain of the consequences of his own act'? Why make the stipulation, instead of moving to dissolve the injunction ? By his own voluntary act he consented to the delay, and cannot now object that ho was hound to observe his own agreement.

So far as we are able to discover, the plaintiff stipulated only to submit the claim of the defendant, whatever it was, to the court of chancery, reserving his rights on the judgment in the court of law. If he has construed the terms of the stipulation differently, and wasted his lime in the court of chancery, instead of following his remedy at law, it is not the fault of the defendant.

We shall now briefly notice some of the cases referred to by plaintiff’s counsel; and first Quantock v. England, 5 Burr, 2628. The statute was not pleaded in that case, but the action being by the assignees of a bankrupt to recover a debt due to him, and about which there was no dispute, a question was raised as to the validity of the commission, because the debts of the petitioning creditors were above six years’ standing before the sueing of the commission.

The -bankrupt appeared and was examined by the commissioners, and was by them declared a bankrupt. This case was decided in 1*1 70,

It had long before this been determined that a jiarty hitending to avail himself of the statute must plead it. 1 Saund. 283, n. 2.

The argument of the counsel for the defendant in that case was, that a creditor who had suffered six years to elapse was precluded from applying for a commission. He said this was within the intent and spirit of the statute.

The court unanimously determined that the objection lay only in the mouth of the bankrupt himself, and that a third person could not make the objection.

Lord Mansfield says the statute only takes away the remedy, and the defendant may either take advantage of the statute or he may waive that advantage. This is the principle upion which a new promise is allowed to be proved. What follows was not necessary to the decision of the case. His lordship says, “ In honesty ho (the bankrupt) ought not to defend himself by such a plea, and the slightest word of acknowledgment will take the caee out of the statute.”

It is true, for a long period the courts were not inclined to favor this plea, and the Court of Common Pleas in England refused to set aside U judgment to let in a“plea of the statute, or to allow the defendant to add it to the general issue, saying it excluded the merits. 2. Wils. 253; 2 T. R. 390. But in 3 T. R. 124, the King’s Bench refused to set aside this plea where the defendant was under an order to plead fenably; and in a subsequent ease, I Bos, & Pul. 228, the Common Pleas refused to restrain a defendant from pleading tlie statute on setting aside an interlocutory judgment, for the plea was not necessarily unconscientious.

Next is the case of Sluby v. Champlin, 4 John. Rep. 461. Yates, J. in deciding the case says, “ It is now generally received as law, that if a party acknowledge a debt unpaid, it is such a waiyey of the protection of the statute as to repel the presumption pf payment, being a re? cognition of the former liability.” This is upon the supposition that the onty presumption raised by the lapse of time is payment, which wo have seen is much tpo narrow a view of the “ true object and import of the statute.”

Heylin v. Hastings, 1 Salk. 29, is the only ggse rgfeifgd to, which ’was a case of a conditional promise, ag u- prove it and I will pay.”

Smith v. Ludlow, 6 John. Rep. 267, next referred to, is 'decided on the strength of Sluby v. Champlin. The only question, however, was as to the sufficiency of the acknowledgment of one partner to charge his copartner after a dissolution.

White v. Potter, 1 Coxe, (N, J.) 159, decided in 1793, was assumpsit on a note. To meet the plea of the statute, the plaintiff proved that the defendant admitted he had had the money, but said that the plain? tiff, as paymaster of the regiment to which he belonged, had received his pay and retained it to the arqount of the note. This was held suf? ficient to take the cage out of the statute. The case is very briefly reported, and the opinion of the court contains nothing more than their decision, without any statement of the principle upon which they make it, or any reference to authority,

In the case of Owen v. Wolley, Bull, N. P. 168, in an action by an executor for money had and received to the use of his testatrix, the defendant was proved to say, “I acknowledge the receipt of the money, but the testatrix gave it to me.” Mr. Baron Clive held that such an acknowledgment could not amount to a promise to pay, when he insisted he was entitled to retain it, and directed the jury to find for the defendant. Neither do we understand how a promise to pay can be implied from an acknowledgment of the defendant of the receipt of the money, when he at the same time says the plaintiff has paid himself.

The terms of the acknowledgment must all be taken together, so that it may be seen whether, upon the whole, the party intended distinctly to admit a present debt or duty. 2 Greenl, Ev. 357.

The next is Cole v. Saxby, 3 Esp. N. P. 160, The proof was, the defendant said he would pay his part when he was able. Lord Kenyon held this to be a conditional promise, and that it was incumbent on the plaintiff to show his ability, and that it was sufficient to giye evi» dence of ability froni ostensible circumstances and appearances in the world.

In Wells v. Horton, 12 Eng, C. L. R, 186, also referred to, the de» fendant’s testator was in his life-time indebted to the plaintiff and he stated to plaintiff’s attorney that he had made provision by his will, and had directed his executors to pay it at his death. He died without making such provision. Held that the promise was good, and that the statute of limitations did not apply,

Clark v. Hougham, 9 Eng. C. L. R. 49, shows that an express promise is not necessary, but may be implied from an acknowledgment.

12 Wendell 490 is not a case under the statute, but one where the question arose as to what is sufficient at common law to rehut a pre» sumption of payment arising from lapse of time. We think it a mista» ken view of the statute to suppose it was only intended to limit and fij? the period when, from lapse of time, a court would presume payment,

Mosher v. Hubbard, 13 John. Rep, 512, was a case where there was evidence of the admission of the debt, being the amount of an order drawn by the defendant in favor of the plaintiff on a third person mora than six years before, and which he admitted had not been paid.

Montgomery v. Hernandez, 12 Wheaton 129, is referred to to show that any delay occasioned by the debtor suspends the statute. Tha language of the court is, “ The right of action was suspended during the pendency of the appeal in this court, and during such suspension the statute of limitations did not run against him.” The action was upon a marshall’s bond, to recover the proceeds of a vessel and cargo sold by hirp. under an order of the district court. The law directs tha money to be deposited in the name and to the credit of the court, and provides that money so deposited shall not be drawn out of bank without the order of the court. The coiirt say, “It was only a partial execution of the precept of the court to sell the vessel and cargo; its manato was not faithfully performed until the proceeds were brought into court by him, in order to be deposited according to law, or until he paid it over to Hernandez as directed by the final decree of the court. The marshall’s failure to bring in the money or to pay it over to Hernandez & Co. was a violation of his duty and a breach of his bond-.”

“ The supreme court of the state (Louisiana) decided, that although the breach of the condition of the bond took place more than six years before the institution of the suit, yet the plaintiff’s right of action did not accrue until within the six years. This court perfectly accords in opinion with the supreme court of the state.”

This fully explains what is meant by the light of action being suspended.

Next comes Webber v. President of Williams College, 23 Pick. 302, The action was upon a promissory note. The defendant, before the expiration of six years from the time the debt accrued, proposed to the plaintiff, that if he would forbear bringing his action at that time, ho should continue to have the same rights, for one year more, that he then had. The plaintiff answered that he would not consent thereto; but did not, in faot, commence bis action until the six years had expired. Upon these facts Ch. Jus. Shaw says: “ The court are of opinion that this was a sufficient compliance with the defendants’ offer; that they ' are bound by it, and that it is a good waiver of the statute of limitations.” And this is all that is said. Whether the court held this to be sufficient evidence of a new promise, or upon what principle the point \yas thus decided, does not further appear, though we suppose jipon the ground of the agreement by the plaintiff not to avail himself of the statute. The case was decided against the plaintiff upon another point.

In Mathews v. Philips, 2 Salk. 425, it is determined that the coin; mencement of an action in an inferior court will prevent the statute from .attaching. So, too, the commencement and continuance of a suit in K. B. will save a case out of the statute in a proceeding in bankruptcy. E»g. O. L. R. 415. So, too, the issuing and return of a writ non est inventus, is sufficient to avoid the statute. 2 Burr. 950. It shows that the plaintiff had rightfully and legally pursued his right. But we see no analogy between these oases and a case where the statute begins to run from the date of the judgment, and the plaintiff has pursued no. Remedy by suit, but only by talcing out execution. If he is unable to collect on execution, he must take care and renew his judgment by suit before the statute attaches.

In Wilcocks v. Huggins, 2 Stra. 907, the question was, within what time an executor of an executrix should bring an action after her death, she having commenced a suit which was pending when she died, and the six years having then expired. It was held that four years was too long a delay. The court say, if the second executor had been retarded by suits about the will or administration, and had shown it in pleading, it would have been otherwise, because then the neglect would be accounted for. The court also say, the most time that had ever been hllowed is a year, and that within the equity of the statute, which gives the plaintiff a year to commence a new action where the judgment is arrested or reversed, but said they would not go a moment further, for it would let in all the inconveniences the statute was intended to avoid.

We have already shown, that the only question in such case is, whether the second suit is brought within a reasonable time, and that by analogy the statute is the best guide on the subject. This only ajrplies to a case where the party has himself commenced a suit, which has failed from some cause beyond his control.

We are referred to Brown’s Executors v. Putney, 1 Wash. R. 302. Counsel for defendant argued, that the clause in the act of limitations which allows the plaintiff one year to re-corn menee his' action, is ex-* tended by an equitable construction to all cases where the plaintiff gets out of court. Counsel in that case were mistaken, or we are, as we have shown. Wilcocks v. Huggins is referred to by the court, and one' year recognized as the time within which the suit must be brought.

In 8 Vt. Rep. 90, it is said the statute does not run upon a judg^ ment while the judgment debtor is imprisoned on the execution, but begins to run from the time of his discharge by taking the poor debt-' or’s oath. We have not the case, but the obvious reason we suppose for this is, that the right of action does not accrue until the defendant’s discharge.

Wilson v. Koontz, 7 Cranch 202, is a case in which the only ques-r tion was, at what time the right of action accrued.

In Pendleton v. Phelps, 4 Day 476, the statute was held not to have run upon petitioner’s demand against the estate of a deceased partner^ because it was not a claim against the estate until after the insolvency of tlie survivor, within the meaning of the statute of Connecticut requiring the claims of certain creditors to bo exhibited to executors within two years. The right of action had not accrued until the insolvency, which was within two years.

We have thus, as fully as was in our power, considered all the points made hy the plaintiff id. favetr df liis replication.-

The facte stated neither shoV that the plaintiff was.under any of the disabilities mentioned in the statute, nor that the defendant? had either expressly promised to pay the debt, or had made such on acknowledgment as contained an unqualified and direct admission of a present subsisting debt, which he was hable and willing to pay, or that he bad waived the benefit of the statute.

There is no pretence that there was any fraudulent concealment of the cause of action by the defendant.

We think the defendant'entitled to judgment on the demurrer, and direct that it be so certified to the circuit court for the county of Wayne.

Certified accordingly<


source: Caselaw Access Project

author: Wing, J!

license: Public Domain

text:
    Crane v. Hardy.
    Whether in ejectment for land purchased at sheriff’s sale by pne not a party to the execution, it is necessary to prove the judgment on which the execution was issued. Query.
    The journal of the court, in which its judgments and all its proceedings are entered from day to day, and signed hy the court, is sufficient evidence of a judgment.
    A warrant of attorney and plea of a defendant taken from the fihs in the case, is evidence, in the same court, of the appearance of the defendant in the suit.
    Sy appearing and going to trial in an attachment suit, defendant waives all prior irregularities.
    An order made hy the court, under K. S. 1838, for the sale of real estate taken- in an attachment suit, goes to the sheriff in office for the time being, and not to his predecessor who Berved the writ of attachment. The court will presume the law of a sister state is the same as that of their own state, unless the contrary is shown.
    A judgment is not a contract within the inhibition of the constitution of laws inri pairing the obligation of contracts.
    To pass the title to real estate sold on execution undorthe act of 1841, it is not necessary it should appear, froxji the-officers x;eturn to tlxe execution, that.qithoj of the appraisers was chosen by defendant, or tlxat ho had an opportxxnity to choose one.
    The settled doctrine as to sales under decrees and judgments is, that the purchaser is not concerned with anything except the judgment, levy and sale. All other questions are between the parties to the judgment and the officer mating the sale.
    Case reserved from Livingston Circuit Court. Ejectment for land purchased by plaintiff on the 13th July, 1841, at sheriff’s sale, upon an order granted hy the circuit court of that county, in a suit in attachment, in which Oliver P. Thayer was plaintiff and Hardy was, defendant. On the trial,-plaintiff did not produce any formal record of the judgment in the attachment suit, hut to prove the, judgment, , offered the journal record of the .court, in which its prqceédii)gs,.are entered from day to day in evidence, which was objected to ]oy defendant. To show defendant appeared in and defended the attachment suit, plaintiff offered in evidence, from the files of the casé, the warrant of. attorney and plea of the defendant, which .were also objected, to .by .defendant. Plaintiff also offered in evidence the order of, sale in the attachment suit, with the sheriff’s .return', which defendant objected to on the ground, 1st, That the sale and return were not made by, the officer who served the writ of attachment, hut hy his successor in office ; 2d, That the land.should not have .been appraised under the act of 1841, but should have been sold at public vendue to the highest bidder, according to the laws of the state on the 6th Januaiy, lSSJ, the date of the note on which the judgment was rendered in the attachment suit; 3d, The sale was not in conformity with the laws of the state in force at the time of the rendition of the judgment, which was in November, 1840; 4th, It is not stated in the return the land was sold, for the highest hid, or to the highest bidder. The sheriff ^ deed to plaintiff, of the land in question, was next offered in evidence hy plaintiff, and objected to hy defendant. The objections were severally overruled by the court, and the evidence allowed to go to the jury, and exceptions were taken by defendant in each case. The attachment suit was on a promissory note made in the state of New York, payable generally, and -at no particular' place. Defendant also requested the court to charge The jury, that the plaintiff must show the regularity of all the proceedings in the attachment suit, from the commencement thereof to the rendition óf tlie verdict. Also, that the sale was insufficient, under tlíé ■act fif 184T, because it did not appear the appraisers were chosen in accordance with that statute; that is, it did not appear the defendant, or any one cEdsen on his 'behalf, appeared or was requested to appear and select an appraiser! The court refused to give 'the instructions, and defendant excepted. The jury returned a verdict for the plaintiff, and á oase presenting the above questions was made 'and reserved for the 'opinion df'this court

      ÍKingsley <& Morgan, for plaintiff.

      Mawlcins, for defendant.
   By tlie court,

Wing, J!

R is áifficult to determine whether it was incumbent upon the plaintiff in this suit to show, in addition to tho order of sale and his deed, that there was a judgment upon which the order was founded. It is true, as a general proposition, that in cases where the proceedings are not according to the bourse of the common law, the party seeking any benefit from them is bound to show their 'conformity to the statute under which they are had.

Assuming, foi- the present, that the proceedings in the case of Thayer %. Hardy were, so far as tlie rights of the defendant in this suit are in question, according to the course of the common law, the authorities do not agree as to the necessity of shewing a judgment.

Mr." Gféenleaf, in his second volume upon evidence, sec. 316, states ihe rule to be, that “ where a plaintiff claims as a purchaser under a 'sheriffSale, made by virtue 'of an execution against ihe defendant in ejectment, it is sufficient to show the exeeutiofi and the proceedings under it, without producing a copy of the record of the judgment itself; for the debtor might have applied to have the execution set aside if it bad been issued without a valid judgment to support it; but not having dfene so, it will be presumed, in an, action against him, that the judgment is right.” He cites 6 M. & S. 110; 5 Esp. Rep. 22, 23; and 3 Wash. R. 546; but he says this point was otherwise decided, ^ and the judgment was required to be proved in an ejectment against the debtor himself, in Doe v. Smith, 1 Holt’s Cases 599, n.; 2 Starkie’s Rep. 199, n.; and 1 H. & Gill 172.

Judge-Cowen, in his notes to Philip’s Evidence, pp. 1080,1081». cites many American authorities and some English authorities tó show that plaintiff is bound to produce a judgment, on the ground that other-, wise the defendant’s property might be divested when in fact there was no judgment, or only one utterly void; and therefore he must shov^¡ such a judgment as at the least would be valid until reversed, though--., he cannot be affected by any mere irregularity either in the judgment-., or execution, not rendering them entire nullities.

Without attempting to determine which is the true rule and which^ best, accords with the analogies of the law, if we concede for the pur-,, poses of this case that it was necessary for the plaintiff to show a judg- . ment, was the proof of the judgment offered by the plaintiff admissible ?,

It is a general rule, that if a plaintiff brings suit upon a judgment,, he must, produce in evidence a judgment record, not only to support, the allegations in his declaration, but because his action is founded di-^ rectly upon-the record of a judgment which he avers to be still in full force and unsatisfied-

In England and. in New York the judgment record or roll is, made up by the attorney of the party recovering judgment. The', short minutes of the proceedings in the cause, kept by the clerk, do not set forth at large the orders, and judgjpents of the court, and they are not signed by the judge. They are- only intended and are used as a guide in making up the judgment roll, which is not a transcript of the , minutes and the pleadings. This roll, when made up by the attorney with the form of a judgment, is signed by thp judge and filed with the . clerk. When this is done, and not until then, is there any judgment rendered upon the verdict of the jury, upon which an execution can., issue.

’ In this state,..all the-orders made and judgments rendered in a cause by the court are entered at large upon the journal. By R. S. 1838, page 382, sec. I, this is required to be done each day, and this journal is.required to be signed each day by the court. The judgment record is a mere transcript of tlie “writ, pleadings, proceedings and judgment.” R. S. 1838, p. 410, sec. 10. Within twenty-four hours after judgment. is entered, or immediately thereafter by order of the court, execution may be issued and levied upon property, and the .property be sold without any other record of the proceedings or judgment. R. S. 183$, p. 4'51,’séá. Si • ; • ■ ■•■' ' '

” Tf, then,'the judgment so recorded and signed in tlie journal;ofl the court is sufficient to ivarrant the issuing of an execution and a levy' and sale of property, I cannot perceive why it is necessary for the purchaser to show a more -formal judgment to sustain- his purchase than would be necessary to authorize the sale; for the validity of the sale does not depend upon records afterwards made up, but upon a then existing authority derived from a judgment and execution. The judgment comea in question collaterally — {he suit is not brought upon it; it is a judgment entered in the same court. ' The journal entry or judgment, to¿khjá: with all other interlocutory judgments or orders, with the pleadings in the cause, are before the court and may be inspected by them.

The defendant insists, that as the plaintiff claims through a proceed- • ing not according to the course of the common law, he is bound to show that the whole of the proceedings were in conformity to' the statute. It was admitted that the suit'ill attachment was brought iqion a note of hand for some $250., To show that the defendant appeared in that suit,' plead ’and' weift to trial; 'the plaintiff produced from the files of the case in the same court liiá warrant'of attorney and plea. I can- ' not see how it should have been necessary for the plaintiff to produde a judgment record to enable Mm to do this.' He had already produced the record of the judgment in the Journal, and‘his only object further was to short that the defendant appeared in that cause, and this was shown by the original warrant’of attorney and plea, and I think they were admissible for that purpose. 5 Yerg. R. 63;_ 14 Serg. and Raw. 153; Cow. and Hill’s Notes 1075. This'being áhown, it appealed affirmatively that the parties and the subject matter oí the suit were within the jurisdiction of the court, and in reference to any further obligation on the part of the plaintiff to produce proof, the case stood upon the same footing with any common law suit where the defendant ajipeais and goes to trial. It does not appear defendant released thq, attachment by giving security under the act of 1880. ■ • ’1 •

By appearing- and going- to trial, the defendant waived all irregularities which may have existed or accrued in the cause, and if not, the proceedings are valid until set aside. They cannot be collaterally impeached : they conclude all persons unless annulled. 3 Cow. and Hill's Notes, 803. If, in point of fact, the court had not jurisdiction, the defendant might have shown it, and it would have rendered the judgment void for every purpose. 19 John. R. 33; 9 Cowen 230. But the defendant does not point to any defect of jurisdiction; he insists that the plaintiff must show affirmatively that the court had jurisdiction.

The next objection was, that the, sheriff who attached the lands did not sell them, but that the ’ sale was- njade by hi's successor in office. The ach Laws 1833tp. 889., sec. 4, provides that ‘fall the property attached shall remain in the hands of .the officer, unless the garnishee in whose, possession it may be found shall give bond to the officer.” By section 11 of the same act it is provided, that after judgment for the plaintiff in attachment, all the property remaining in the hands of. the 'officer, with the lands and tenements, shall be sold under the same restrictions and regulations as if the same had been levied upon by execution. The attachment suit was commenced under the act of 1833, in July, 1838. The Revised Statutes took effect before the return day of the writ, but there is no difference between the attachment law of 1833 and that of ÍB38 in respect to the duties and obligations imposed upon the sheriff, except that the laws of 1838 require the sheriff to leave a copy of his Writ -in'the register’s office for record. The laws of 1833 do not direct what sheriffs' shall do with writs in their hands when they go out of office. By'the Revised Statutes of 1838, p. 46, sec. 48, the outgoing sheriff is bound tb serve, execute and return any writ or preeept in his’ hands the same as if he continued in office. Under the attachment law, the writ does not í-émain in his hands: it is returned at the next term after it is issued, and after it is returned the clerk makes out an advertisement. If any of the pérs'onál property is sold before final judgment, a special order is made for that purpose, and the sale is made by virtue of the order. Neither the laws of 1833 or 1838 require the sheriff to take the actual custody of lands attached. He is required by both laws to retain the goods attached, and after judgment for plaintiff, all the property remaining in the hands of the officer, with the lands and tenements,” are to be sold. I cannot find anything in the laws relating to writs in the hands of’ the sheriff wh>en hé goes out of office,, which would require1 that’the final order of sale in cases where lands only were attached should he directed to or executed by the sheriff who served the writ of attachment, if he is out of office.

The case of the American Exchange Bank v. the Morris Canal Banking Company,. 6 Hill’s R. 368, is cited by defendant’s counsel in support of his objection. In that case the suit was against a foreign corporation, under a special statute requiring the sheriff to attach and safely Iceep all the estate real and personal of such coiporation, to an.-, swer any judgment recovered. There are many provisions in that statute indicating that the-same sheriff should finally sell. By the laws,, of New York, the former sheriff is required to deliver to his successor in ■ office all executions, attachments, and final process, except such as the former sheriff shall have executed or. shall have'begun to execute by the collection, of money thereon,'or by a levy on property in pursuance thereof. Hé is authorized’to proceed and complete the execution of all final process and attachments which he shall have begun to- execute by a collection of' the money thereon. It is manifest the laws- of New York and of this state are very different, so much so that the case cited, founded .upon’a special statute,'cannot he an authority in this case. The practical'construction of oiirlaws has been for very many years to, direct the order of sale of real estate to the sheriff in office for the time being. The order is general, not directed to any particular officer.

- It is further objected, that the proceedings and sale by the sheriff were not according to the laws of New, York, where the note was made on which the attachment suit was commenced, nor pursuant to the laws of this state at the date of the note in 1837, or at t the time,, the judg--., ment was rendered.

It was said in the case of McCracken v. Hayward, 2 Howard's R. 612, that “the obligation of.’a contract consisted in its binding force on the party who makes it.. This depends upon the laws in existence when it is made. They are necessarily -referred to in all contracts, and form a part of them as the measure of obligation to perform them by the one party and the right acquired by the other.” The doctrine asserted in that case and in the case of Bronson v. Kinzie, 1 Howard’s R. 311, applies to laws in reference to which the contract is made, and. forming a part of the contract. In this case the note was made in the state of New York in 1837. No place of payment was specified in the note. What laws, then, were incorporated into and formed a part of ithe contract ? It cannot be assumed that it was made, in '¿reference to ‘•the laws of this state. If not, how can it be said’ that the laws of this state in force in 1837 must govern and furnish 'the remedy upon the contract? If the laws of New York were to govern, what were they? They were not -produced in evidence on the trial, and therefore the 'court could not notice them, if obliged to do so under any circumstances, any further than as" a means of understanding the obligation of the 'contract, and not the remedy merely. The court would presume that the laws of New York were the same as oin-s, at the least until the contrary was shown. The court and the sheriff could only notice the laws of this state at the time they were required to give judgment and sell •the property. It is not pretended there was any difference between the laws of that and of this state in regard to the effect to be given to the terms of the contract. The difference was claimed to he in the remedy afforded by our laws.

Bu$ it is said the judgment is a new contract, and the subsequent proceedings are to be governed by the laws in force when the judgment was rendered. If the legal effect of the judgment was to connect with it the then existing legal provisions for its enforcement in this state, then the position of the defendant would be sound. !But the judgment was not a contract within the meaning of the rule quoted above, for the rule has relation to the voluntary contracts of the parties, and not to obligations forced upon either party. The law in force at the time of a sale of land upon execution must control the manner of proceeding- by the officer in conducting- the sale, and not the law in forea at the time of the rendition of the judgment, except in those cases specially provided for by the statute, (Allen v. Parish, 3 Ohio R. 189) unless they interfere with the contract, as in the case of McCracken v. Hayward.

It is further objected, that the appraisers were not chosen pursuant to the law of 1841, under which the sale purports to have been made, and that it does not appear by the return that the íánds were sold to the highest bidder.

Tile first section of the dppraisal law, so called) passed the 27th

March', 1841, provides that no sheriff, officer, or other person shall make sale of any lands, tenements, or real or personal estate upon any execution, attachment or other process, until the same be appraised by disinterested freeholders, as provided in said act. The third section requires the sheriff, at'the time of levy of execution, or at the time of malting sale, to cause the lands to be appraised by disinterested freeholders; provided, however, that the creditor, his agent or attorney, and the debtor, his agent or attorney, if they shall so elect, may choose each party one appraiser, and if said appraisers shall not agree ill their appraisal, they may select a third person to act With them; but if they shall fail to select, then it shal.1 he the duty of the sheriff to select and appoint said fhii'd person. There is another proviso which prohibits a sale of the premises át less than two thirds of the appraised value. The officer is directed, within ten days after such appraisal, to file in the clerk’s office from which the • process issued, a statement of the appraisal, signed by the appraisers agreeing, thereto, and the person making the .sale is directed forthwith to execute a deed of the real estate sold, to the purchaser, which may be recorded, “ and shall be prima facie evidence of the correctness of the proceedings in such sale, and, until the contrary is proved, shall vest in the purchaser the estate the defendant had in the-premises.”

By the amendatory act of the 13th April, 1841, some few alterations were made in this law, by one of which, the deed given by the sheriff was not to be operative until after six months. The other amendments do not affect the question wé aré now considering.

The purchaser, the plaintiff in this suit,' received‘from the sheriff á deed. We have already said that the sheriff was authorized to act, to make the sale and give the deed. Unless his acts were void for want of conformity to the statute, the deed was valid. . , .

The several acts passed in 1841 do not direct what'.shall be embraced in the sheriff’s return, if the property is sold within the life of the execution, further than that he shall return a statement of the appraisal," and file it in the office of the clerk.

The sheriff returned that he had caused the land to be appraised according to law. There is nothing in the return indicating .that the ¿heriff chose the appraisers, but the objection is, that it does not appear áfcrmatively that either of the appraisers was chosen by the defendant, or that he bad an opportunity to choose one.of them. The sheriff is not required by the statute to set forth all his proceedings in detail in his return, and there is no express provision making the title of the purchaser dependent ujron the return of the sheriff. The settled doctrine as to sales under decrees or judgments is, that the purchaser is not concerned with anything but the judgment, levy and the sale. All other questions are between the parties to the judgment and the officer making the sale. Wheaton v. Sexton, 4 Wheaton 503. In Armstrong v, Jackson, 1 Blackford 210, the same doctrine is declared in the following language: “It is a fair presumption .that the judgment of a competent court, which a bona fide purchaser sees of record, has been correctly rendered, and that the execution shown him in the hands of the sheriff has been regularly issued. It may be safely presumed, too, that the sheriff has done his duty, in obeying the directions of the statute, as it respects the inquest and the advertisement of sale, &c. It is important to the interest of both plaintiffs and defendants, that the title of a bona fide purchaser at sheriff’s sale should not be affected on account of any irregularity in the judgment or execution.”

Decisions of the courts of New England have been cited to show that any failure on the part of the sheriff to pursue the directions contained in the statute will render his proceedings void; and that the regularity of his proceedings must appear in his return. In those states the debtor’s land is not sold. It is set off to the creditor after appraisal. The sheriff makes a return of his proceedings, including the appraisal, and this is to be recorded in the register’s office within three months. It has been held under those statutes, that it must appear by the sheriff’s return that the debtor had an opportunity to choose an appraiser. 2 Mass. 154; 8 id. 284: 17 id. 299; 12 Pickering 47; 3 N. H. Rep. 317; 6 id. 306. Those proceedings are similar to an extent upon an elcgit in England. In the case of Jackson v. Sternbergh, 1 John. Cas. 153, the plaintiff in ejectment offered in evidence the judgment and execution. It did not appear by the return of the sheriff on the execution, that he had pursued the directions in the statute. The court say the return of the sheriff is not essential to the-title of the purchaser. That title was not created by, nor is it dependent upon the return, but was derived from the previous sale made by the sheriff by virtue of the writ. It was sufficient for the purchaser that the sheriff had competent authority, and sold and executed a deed to him» Proceedings upon aii elegit do not apply to the writ of fieri facias. On an elegit no sale can be had, but the sheriff takes an inquisition by a jury, who set off a moiety by metes and bounds. It is necessary to return the inquisition, which, with the sheriff’s return, constii utes the title. Here the sale and the sheriff’s deed are sufficient evidence of the title',- and if the purchaser can show that the sheriff has authority to sell, it is enough, and he need not look further. '

Under the New England statutes, no deed is given.- íhé doctriné of the common law applies here, unless the statute lias changed it. Our' statute is substantially the same as the Ohio statute In the year 1828, this precise question came before a full bench of the supreme court of that state for the first time, in the casé of Allen v. Parish, 3 Ohio R. 187. It was an action of ejectment. The defendant gave in evidence certain judicial proceeding by virtue of which the land was sold by the sheriff. There was no appraisal of the land sold recited in the sheriff’s deed, or proved at the trial, and the question was, whether the appraisement was essential to the validity of the deed. The court held, (Judge Burnett dissenting) that the sheriff’s deed would vest in the purchaser, not being a party to the judgment, a good and valid title to the lands levied upon by and sold under the execution, although no appraisement of the premises had been made. They cite the case in 4 Wheaton 503; 2 Bibb 402; 3 id. 217; 8 John. R. 366; 16 id. 537; 2 Binn. 40; as asserting: substantially the same doctrine. The court comment upon that part of the act which is our third section, and say that the proviso is in a section which is directory to the officer, and that if the appraisement was intended by the legislature as essential to the validity of the sheriff’s deed,- they would, it is presumed, have provided some mode of preserving the evidence of the appraisal for the benefit of the purchaser, and have incorporated the proviso into that part of the statute declaring the effect of the sale of land on execution, and the extent of the interest acquired by the purchaser at such sale. There is no direction in our act to the clerk to record the appraisal. In Ohio the original inquest is delivered into the hands of the sheriff, for his security. A copy of it is delivered to the’ clerk, not upon the return of the execution, hut before the advertisement, that all may examine it and regulate their conduct accordingly. The court in Ohio refer to the fact that the sheriff' is liable to a penalty if he does not pursue the statute. Our Revised Statutes of 1838 contained the same provision in reference to advertising, and declared the sale good if the sale was not advertised^ thus adopting the common law principle. But it is apprehended our statute does not reach proceedings under the act of 1841, except perhaps so far as relates to advertising. Under the Ohio statute, the defendant has an opportunity to get an order staying proceedings, if there is any irregularity in the sheriff’s proceedings, before sale. One oftlie objections to the proceedings in the case cited, made by Judge Burnett, was the prohibition to sell for less than two thirds of the appraised value. He looted upon this as a condition precedent, a compliance with which was essential to vest the title in the purchaser. The majority of the court refer to a provision of the law equally express, requiring the officer, before he proceeds to sell, to advertise, and yet they say it was never held in their state that a failure to show that the property was advertised, would defeat a purchase at sheriff’s sale.

The Ohio statute declares that the deed given shall vest in the purchaser as good and perfect an estate iff the premises therein mentioned, as was vested in tjie defendant at the time the lands became liable to the satisfaction q# the judgment.” Our statute goes further, and expressly declares what effect shall he given to the deed to the purchaser. It provides that the deed shall be prima facie evidence of the correctness of the proceedings in, such sale, and mitil the contrary be proved shall vest in the purchaser' ns good and perfect an estate to the described premises as was rested in (he defendant in process. This clause is contained iu the same third section which contains all the directions relating to the appraisal and sale, and it manifestly shows the intention of the legislature to have been, that a compliance with the various provisions in that section should not be considered as a condition \yppn which the title was to vest, at least until the proceedings were shown to he Lad. It shifts the burthen of proof, and requires the defendant to show affirmatively that the statute was not pursued.

The sheriff has returned, that ho “ caused the lands to be appraised according to law, by ” &c. This should he received as evidence that the sheriff did comply with the first section of the act, if this is necessary. That the appraisers were chosen according to law, will be presumed until the contrary is shown. In the ease of Piatt v. Piatt, 9 Ohio R. 37, the sheriff returned that he “ had duly appraised, advertised,” &c. On a contested motion to confirm the sale, this was deemed a sufficient return upon an execution, of an appraisement by three disinterested freeholders, in the absence of any proof to the contrary. The court say, it will be presumed the appraisal has been returned, because the law requires it of the officer, and in the absence of anything to the contrary, he will be presumed to have done his duty.

Certified accordingly.


author: Miles, J.

text:
    Mundy v. Monroe.
    An affidavit of publication of notice of sale of mortgaged premisos in a statutory foreclosure, made between seven and eight years after the sale took place, is not presumptive evidence of the foots therein stated, under see. 9 E. S. 1838, p. 501.
    The act, Ses. L. 1843, p. 139, inhibiting actions of ejectment by mortgagees before foreclosure of the mortgage and the expiration of the time of redemption, is unconstitutional and void as to mortgages in existence at the time of its passage.
    Case reserved from Jackson Circuit Court. Ejectment for lots 3 4, 5, and a part of 6, in the village of Jackson, tried before the Hon. Warner Wing, in May, 1846. The facts are stated in the opinion of the court.
    Mundy, in person.
    Frink, for defendant.
   By the court,

Miles, J.

The plaintiff held a mortgage for a portion of the purchase money, on a sale of the premises to one Paul B. Ring, under whom the defendant claims title.

On the trial, the plaintiff, to establish a statute foreclosure of this mortgage, offered in evidence an affidavit of the publication and posting up of a notice,of sale, commencing in June, 1838, and continued for twelve weeks. This affidavit was made and sworn to in May, 1846. Its reception as evidence was objected to by the defendant.

By the consent of the defendant, a verdict was taken for the plaintiff, subject to the opinion of this court upon the admissibility of this evidence, and upon .other points raised on the trial, all of which, have been certified to this court, but none of whiph except the above, and one which we shall hereafter notice, are necessary to be considered.

First, as to the admissibility of the affidavit as evidence of the publication and posting of the notice.

The statute in force at the time of the sale, R. S. 1838, p. 500, sec. 8, provides that any party desirous of perpetuating the evidence of any sale made in pursuance of the provisions of that chapter, may procure affidavits of the publication of the notice, to be made by the printer of the newspaper in which the same is published, or by any other person having knowledge thereof, and of the posting of the notice to be made by the person who affixed the same on .the outward door of the court house, and an affidavit stating the circumstances of the sale of the premises, to be made by the person who acted as auctioneer at the sale.

These affidavits are, by the 9th section of the act, required to be recorded in the book of mortgages, in the registry of deeds in the county where the mortgaged premises are situated; and the original affidavits “ so recorded,” or the record, or certified copies, are made presumptive evidence of the facts therein contained.

The statute introduces a new rule of evidence. It is an extension of the general act authorizing a party to perpetuate the testimony of his' witnesses. R. S. 1838, p. 435, sec. 81. The 35th section of the last mentioned act allows the deposition to be used only in case the personal attendance of such witness cannot be had within process of the court.”

Although the statute allows these recorded affidavits to be presumptive evidence of the facts contained in them, it cannot be construed to exclude other evidence of the same facts. The object of the law undoubtedly is, while the facts are fresh in the recollection of the witnesses, to preserve a perpetual remembrance of the thing, thus avoiding the danger of loss of the evidence from defects of memory on the oSte hand, and of perjury on the other, at a subsequent period, when litigation in reference to the subject matter may make such evidence important

These affidavits may not be necessary at th,c time of the sale, or perhaps not until the time of redemption, if any, has expired. But when the purchaser has ascertained that he has acquired a title, he should at once take the necessary steps under1 the statute to preserve the evidence of that title.

It is true the statute does pot prescribe any time within which this is to be accomplished, neither do we: it is sufficient that this court see that the statute, receives such a construction as that it shall not be the paeans of oppression, fraud or injustice.

If the. party chooses not to avail himself of the benefit of the statute, b.nt to pro\ e the facts of the sale necessary to his title in the ordinary mode, he subjects Ins witnesses to the ordeal of a cross examination by which every particular in relation to the regularity and sufficiency of the proceedings may be tested.

Can it be supposed that it was the intention of the legislature ta allow a party claiming title under a statutory mortgage sale, after the lapse of eight years, and after suit commenced, to procure an ex parte affidavit of these facts, and use that as. the only evidence of the publi» cation — thus dispensing- with the rule of evidence requiring a careful examination of the witness in open court, and allowing the opposite party the opportunity of a cross examination?

We think such a course, if tolerated, might lead to great abuse of the statute. This makes it necessary to consider the next point.

The plaintiff insisted, upon the trial, that if the sale was irregular, he was still entitled to recover, under the testimony showing that he was a mortgagee of the premises, and that the act of 1S43, Ses. Laws 1S.4&, p. 139, inhibiting1 the action of ejectment until after a foreclosure of the mortgage and the expiration of1 the time of redemption, was void, as impairing the obligation of the contract, the mortgage being of a date anterior to the act.

It is not distinctly stated, but we gather from the case certified, that the mortgage contained the usual covenant by which the mortgagee, in default of payment, was authorized to enter upon the premises and to sell them at public auction; to retain out of the money thus raised the amount due, and to pay the overplus, if anyr, to the mortgagor.

The mortgage was executed within this state, upon premises situated here; was intended as a security for the payment of $1500, in three instalments of $500 each, all of which had become due at the time When the act of 1843 was passed, and before the suit was commenced)

The plaintiff insists, that the legal title having vested in him, upon forfeiture by the mortgagor, he had the right to the possession, and the consequent right to the perception of the rents, issues and profits, and that the act of 1843 hinders and affects that right.

It seems to be conceded by all who have written on this subject; that where the law sought to be invalidated affects the remedy only, .and does not touch the right of the party secured by the contract* it is not repugnant to that provision of the constitution which declares that no state shall pass any law impairing the obligation of contracts.

In the case of Sturges v. Crowninshield, 4 Wheaton 200, so often referred to upon questions of this kind, the late Chief Justice of the U: States says, “ the distinction between the obligation of the contract and the remedy given to enforce that obligation, has been taken at the bar and exists in the nature of things. ’Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct:”

It becomes important, then, to inquire what rights were conferred upon the plaintiff by this mortgage.

In Jackson v. Hull, 10 John. R. 481, it was held, that after default in payment, the mortgagor had only an equity of redemption in the premises; that a purchaser upon execution against him, buying with knowledge of the mortgage unsatisfied, could not defend against an ejectment brought by the mortgagee to recover the possession.

The doctrine is clearly laid down in this case, that after default in payment, the creditor may by ejectment put himself in possession of the rents and profits of the land. 4 John. R. 216.

A tenant of a mortgagor in possession, after the mortgage has become forfeited, during the continuance of the lease from the mortgagor, may attorn to and take a lease from the mortgagee, and in an action brought by the mortgagor for his rent under the lease, may set up such, attornment as a legal defence. 20 John. R. 51. A widow of the grantee in a deed cannot claim dower in the premises, if a mortgage is at the same time given for the pinchase money. Stow v. Tifft, 15 John. R. 458.

In Hughes v. Edwards, 9 Wheaton 489, it is asserted that the mortgogor, after forfeiture, has no title at law, and none in equity, but to redeem upon the terms of paying the debt and interest, and that his conveyance to a purchaser, with notice, of consequence passes nothing but an equity of redemption.

In equity, a mortgage is sometimes called a lien for a debt, and so it is, and something more: it is a transfer of the property itself, as security for the debt: it is a qualified estate and security. It is called a lien only in a loose and general sense, and then only by way of contrast to an estate absolute and indefeasible. 1 Peters 441.

Lastly, it is said by Mr. Justice Story, in 1 Howard 318, that according to the long settled rules of law and equity, in all of the states whose jurisdiction has been modeled upon the principles of the common law, that the legal title to the premises vests in the mortgagee, upon the failure of the mortgagor to comply with the conditions contained in the proriso, and at law he has a right to sue for and recover the land itself.

We recognise this right in a mortgagee. In the case before us, it had become absolute before the statute in question was passed, and if it is a part of the contract between the parties^ and the statute infringes upon it, the latter is unconstitutional.

It seems to us this right is a part of the contract itself. The contract includes a conveyance, by way of mortgage, of tbe premises in question, upon tbe performance of tbe condition of wbicb, tbe property re-vests in tbe mortgagor, and upon failure of performance of which condition, the legal title is vested in the mortgagee, subject only to an equitable right of redemption upon payment.

By tbe common law, a right to land includes the right to enter on it where the possession is withheld from the right owner; to retain the possession, and to receive the issues and profits arising from it. Altham’s Case, 8 Co. 299, referred to in Green v. Biddle. 5 Peters’ Cond. R. 381.

Besides, there is in this case an express covenant in the deed to that effect, that upon forfeiture the mortgagee might enter into possession of the land, and sell the same to make the money. This covenant contains both a recognition of the legal right of the plaintiff, by the obligation of the contract, to the possession of the premises after non payment, and also an authority to him to pursue a particular remedy to enforce that right, by advertisement and sale. This right existed, and became perfect as soon thé condition of the mortgage became forfeit; and any legislative proceeding which hinders the assertion of the right, and seriously affects it, affects the obligation of the contract.

By the non payment of the money, the plaintiff acquired the right of possession; the withholding of which by the mortgagor is in law an injury to the right of the plaintiff, who is entitled to assert his right by an immediate pursuit of the proper reifaedy.

In Green v. Biddle, it is said, “nothing can be more clear upon principles of law and reason, than that a law which denies to the owner •of láhd a remedy to recover the possession of it, when withheld by any person, however innocently he máy have obtained it, or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits by conditions and restrictions tending to diminish thfe value and amount of the thing recovered; impairs his right to and interest in the property.”

The áitti'atión of mortgaged píemísés may frequently b’e such as to make the mere suspension of tire exercise of the right of possession a great injury to that right; as in a case where the principal Value of thé premises consists in buildings or other imqn-ovements made ther'e^ -on, subject to destruction; or to a depreciation in value by long use.

The mortgagee, if put in possession, may apply the issues and profits in payment on the mortgage, and is required to account therefor. The mortgagor, if p'enhitted to remain in possession; may or may not appropriate them to that purpose, at his option.

"Where thé pi-émises, which is not unusual, are iii the first instance a sléndér Security for the debt, by depriving- the mortgagee of the right to immediate possession, his security may be so far lessened and reduced iñ valué as to leave little more than enough t'b pay the expenses of a foreclosure and sale.

In Green v-. Biddle, the main question discussed and decided was, whether certain acts of the legislature of Kentucky, in relation to occupying claimants of lands in that state, passed severally in 1Y9Í and 1812, were unconstitutional if found repugnant to the laws of Virginia passed in 1789, prior to the separation of Kentucky from that state.

The seventh article of the compact made between these states, upon the separation of the lattér from the former, declares, “ that all private rights and interests in lands within the said district, derived from the • laws of Virginia, shall remain valid and secure under the laws of the proposed state (Kentucky), and shall be determined by the laws now existing in this state,” (Virginia).

The court having first determined that every part of the act of 1797 was within tlie purview of the act of 1812, and consequently repealed by the repealing clause in the latter act, proceeded first to inquire whether that act was repugnant to the law of Virginia as it existed at the time the compact was made. They declare that the common law of England was at that period and then was the law of that state, and refer to the rule of that law as laid down in Altham’s Case, to which we have already referred; and then proceed to state that a right to land essentially implies a right to the profits accruing from it, since without the latter, the former can be of no value. Thus a devise of the profits of land, or even a grant of them, will pass a right to the land itself. Shep. Touch. 93; Co. Lit. 46. “ For what” says Lord Coke in this page, “is the land but the profits thereof?” They further state, that at the period of the compact there was no statute in Virginia less favorable to the rights of those who claimed title under her than the common law. After comparing the provisions of the act of 1812 with the provisions of the existing law at the period before mentioned, the court decide that the right and interest of a claimant were not as valid and secure under this act as they were under the laws of Virginia, by which alone they were to be determined. The court say, “ The objection to a law, on the ground of its impairing the obligation of a contract, can never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expiressed in the contract, or dispensing with the performance of those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation.” The court next proceeded to determine that the act of 1812 was repugnant to the constitution of the United States, and to declare the same void, as impairing'the obligation of the contract between Virginia and Kentucky; upon the principle that the constitution of the United States embraces all contracts, executed or executory, whether between individuals or between a state and individuals, and that a state has no more power to impair an obligation into which slie lias lierself entered, I* an she can the contracts of individuals.

I have made this extended reference to this case mainly for the purpose of showing that the act of assembly of Kentucky was held to be repugnant to the constitution of the United States, although we have been told by high authority, that “ the question did not arise under that constitution, but under the compact.” Dissenting opinion of Mr. Justice Mc Lean, in Bronson v. Kinzie, 1 Howard 328. It is true the question arose under the compact, but the act of 1812 being repugnant to it, impairing its obligations, was for that reason held unconstitutional.

A brief reference to some of the provisions of the act will show that, although they were in the form of remedy, they impaired the right. Among other things, the act provides that no action should be maintained for rents or profits against the occupier, for any term elapsed before the judgment or decree in the suit. It then provides for the appointment of commissioners to make á valuation of the land in its unimproved state, and of the rents and profits, and for the giving of a bond for the amount of the valuation by the party who is to pay the same, (it.compelling the successful claimant to pay to a certain extent, the assessed value of the improvements made on" the land by the occupant), and in default thereof, provides'that judgment shall be given against the party for the amount; or if the right owner fails to give a bond, the other party may at his election give a bond and take the land. It then proceeds to declare, that the occupant shall not be evicted or dispossessed by a writ of possession, imtil the report of the commissioners is made, and judgment rendered, or bonds executed, in pursuance of the act.

All this, though purporting to modify the remedy, is manifestly an infringement of the rights of the claimant, secured to him by the laws of the contract, and was so held by the court in that case, the court having determined, if we understand the opinion, that in all its provisions, the act of 1812 was obnoxious to the charge of repugnance to the law existing at the time of the compact, and necessarily to the charge of being unconstitutidhal.

The remedy may undoubtedly be modified, so far as the same may be done, “ without impairing the obligation of the contract,” and such we apprehend is the meaning, of what is said in Sturges v. Crowninshield. • Otherwise we fear the result would be, that by means of merely remedial alterations in name, the substantial rights of parties may be impaired, and the provision of the constitution be set at nought.

The object and intention of the statute of 184'3 was to take away the right to possession until after a foreclosure and the expiration of the time of redemption; apd any other merely possessory form of action than ejectment would be held to he within the statute, as being within its equity au,d intention. By this act, the mortgagee is required to incur the additional expense of a foreclosure, before obtaining possession, and is .deprived of the right to add to his security, by the perception of-the rents and profits of'the premises during the time required to accomplish this and the time of redemption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment of the debt, as he chooses, and the mortgagee in the mean time is subjected to the risk, often, considerable, of the de-. -predation in value of the security. If the view which we have taken be correct, need it be asked whether the right and interest of the plaintiff in his security are as “.valid and secure ” under this act as they were under the law existing before.its passage? We thipk it obvious^ that however this may -be looked upon as affecting the remedy, it does, not affect that only. In Willard v. Longstreet, 2 Doug. Mich. R. 172, it was determined, on the authority of Mc Cracken v. Hayward, 2 Howard 608, and Bronson v. Kinzie , 1 Howard 311, that the provision of the act of 1841, Ses. Laws 1841, p. 45, secs. 1, 2, prohibiting ike sale of property on execution unless it would- bring two thirds, of-its appraised value, so far as it applies to the remedy to enforce previous, contracts, -is unconstitutional and void. The court say, “ If there had been no sale <ar bid for two thirds the amount at which the premises were valued, they (the plaintiffs in the execution) might have insisted that the property should he sold absolutely to the highest bidder, ircer. gpective of the appraisement; and if the sheriff had refused to sell, have, applied to the court for an order upon him to do so, as was done in the case of Mc Cracken v. Hayward.

Wo are then led to the conclusion, that the act of the legislature is mf-constitutional and void as applied to contraéis existing at the time of its passage; and liaviag come to this conclusion, we know of no other mode of discharging our duty than so to declare it.

The plaintiff is therefore entitled to recover, and we direct it be so certified to the circuit court.

Certified accordingly.