Gordon v. Lewis

As to the first question, the court are clearly of opinion, that the proof does not establish any sufficient entry into the premises for condition broken, so as to create a statutable bar to the bill to redeem. The statute of Massachusetts of the 4th of November, 1788, c. 22 [Laws Mass. p. 199], declares, that all mortgaged premises shall be redeemable, “unless the mortgagee, or person claiming under him. hath by process of law, or by open and *804peaceable entry made in the presence of two witnesses, taken actual possession thereof, and continued that possession peaceably three years.” The statute of the 1st of March, 179S, c. 77 [Laws Mass. p. 577], de-dares, that where the mortgagee, &c. “have lawfully entered and obtained, or shall lawfully enter and obtain, the actual possession of such lands and tenements (the mortgaged premises) for the condition broken, the mortgagor, &c. shall have right to redeem the same at any time within three years after such possession obtained, and not after-wards.” Taking these statutes together it is manifest, that an entry into the land by the mortgagee is not alone sufficient to make the time of foreclosure begin to run; but it must be after the condition broken, and for the condition broken. And as this is a statute operating as a bar to an equitable right, it is not to be extended by intendment There must be a strict compliance with all the requisites to create the foreclosure. In our judgment, it is not sufficient, that the entry has been made after the condition broken; for that may well be by the mortgagee without any intent to foreclose. But the entry must be with the intent to foreclose, or, as the phrase in the statute is, “for the condition broken.” Unless, then, the two witnesses, in whose presence the statute requires the entry to be made, can speak to the intent of the entry, as well as to the entry itself, that it was “for condition broken,” it does not come within the purview of the statute. And in the present case, there is no proof, that it was with intent to foreclose the mortgage.

In the case of Taylor v. Weld, 5 Mass. 109, 119, it is explicitly admitted by the court, that it must be proved on the part of the mortgagee, that he did enter for condition broken. But it has been supposed, that that case establishes the doctrine, that an entry after condition broken is to be presumed to be for condition broken.2 In our judgment, that case establishes no such doctrine. The court go into an elaborate examination of the facts of that case, and come to the conclusion, (with which we have nothing to do,) that, though in point of fact there was an entry after condition broken, that entry could not at that time be, under all the circumstances, deemed an entry for condition broken; but that the entry for the condition broken was at a later period. In our judgment, the mere proof of the fact of an entry after condition broken, is no proof of the purpose, for which it is made. The law requires the intent to be as notorious as the act Equivocal acts, which admit of different interpretations, ought to be so construed as to preserve and not to defeat rights.

Then, as to the title to the Haskell SawMill. It appears, that on the 5th of November, 1811, Archelaus Lewis and Stephen Thacher, as executors of Peter Thacher, brought an action against Joshua Webb, and attached the mill on the writ. At that time Webb’s only title on record was a deed of one undivided half of the premises from John Quimby, dated the 27th of May, 1806. On the 1st of November. 1808, he bought the other half from Solomon and Mark Haskell, to the latter of whom he mortgaged it for the payment of certain notes. But his deed from the Haskells was not recorded until long after the attachment, namely, in March, 1817. Judgment was duly obtained in the action; and the execution was extended, in December, 1812, on three fifths of the mill in common and undivided.

Under these circumstances, it is contended on the part of the defendants, first, that if Webb is to be deemed a tenant in common of one undivided moiety of the saw-mill only, according to his title on record at the time of the levy, then that levy is good at least for that moiety; secondly, if he is to be deemed in possession of the whole mill, so that the execution creditors (the executors) are to be deemed to have notice of his title to the whole mill, still the levy on the three fifths of the mill is ex necessitate rei good. The plaintiff contends, on the other hand, that the levy is altogether void, because at the time of the levy the debtor was seised of the entirety of the mill, and not of an undivided moiety thereof. This necessarily leads us to the consideration of the nature and mode of levies of execution on real estate according to the laws of Massachusetts, by which the present extent must be governed, it being before the separation of Maine. By the provincial act of 1692, it was' declared, “that all lands and tenements belonging to any person, in his own proper right in fee simple, shall stand charged with the payment of all just debts owing by such person, as well as his personal estate, and shall be liable to be taken in execution for satisfaction of the same.” The same provision was re-enacted in 1696. But the mode of levying the execution thereon was not pointed out. This was supplied, first, by an act in 1716, and afterwards by another act in 1719, which required the extent to be by ap-praisement in the mode prescribed under our present laws. And the same acts further provided, that when it so happened, that the real estate extended upon could not be divided and set out by metes and bounds, then the execution should be extended upon the rents of such real estate, and the tenants thereof be caused to attorn to the creditor and pay their rents to him accordingly.3 In this situation our laws remained until the revision by the statute of the 17th of March, 1784 (St. 1783, c. 57), when it was further provided, that “when real estate of the debtor or debtors shall be held in joint *805tenancy, in coparcenary, or tenancy in common, with the real estate of other persons, then the officer may extend execution on such debtor or debtor’s real estate, held as aforesaid, or part thereof, describing the same with as much precision as the nature and situation thereof will admit, and give the creditor, &c., seisin or possession of such debtor or debtor’s real estate held as aforesaid, or part thereof, to hold in common with the said other persons.” So-that this statute in effect provided for three classes of cases; first, levies on real estate in common cases, where the estate can be set off by metes and bounds; secondly, on rents, where the estate cannot be set off by metes and bounds, or other proper description, and there is a tenant in possession to attorn; and, thirdly, levies where the estate is held in an undivided share with others.

Now, the argument for the defendants is, that the act of 1696 still remains in full force, as to all cases of real estate, which cannot be set off in either of the modes thus prescribed, as is the case of a mill wholly owned by one person, where a part of it cannot beset off on one execution in severalty, as the privilege is incapable of a severance; and that the statute of Massachusetts of the 20th of February, 1819 (St. 1818-1820, c. 115), on this subject, is merely affirmative. But it seems to me, that the argument itself is difficult to be maintained. The act of 1696 merely declares in general terms the liability of real estáte to be taken in execution. The act of 1719 expressly declares the manner in which the levy shall be made, when the creditor doth “think fit to levy upon the real estate of such debtor;” so that by necessary implication the extent cannot be in any other manner. And if this were even doubtful before the statute of 1783, c. 57, that statute being a revision of the whole subject and in pari materia, operates as a virtual repeal of the antecedent laws. If, then, the levy of Lewis and Thacher on the Haskell Saw-Mill can be maintained at all, it must be maintained under the statute of 1783, c. 57. If, at the time of that levy, Joshua Webb had been seised of an undivided moiety only of the mill, notwithstanding the extent of a greater portion, namely, three fifths, it would have been good for the moiety. And so it was held in Atkins v. Bean, 14 Mass. 404. The difficulty is, that Webb was at that time owner of the whole mill under the purchase from the Haskells, though the moiety purchased of them was under mortgage. The •question, then, is, whether by law an undivided part of a mill, of which the judgment debtor is sole owner, can be set off on execution. It is said, that it can, ex necessitate, because the privilege is incapable of severance, and a part of the mill cannot be set off by metes and bounds; and there is no inconvenience in setting off an undivided portion of the whole, describing the whole by metes and bounds. If the question had been wholly new, and untouched by legislation or decision, I must say, that I should have been greatly distressed by the argument. The statute certainly does contemplate the case of an extent of an undivided right or share of the debtor in real estate, or of part thereof; and there does not seem any very sound reason, why, if the debtor owns a moiety, one-quarter part may be set off on execution, and yet, if he owns the whole, one moiety cannot, where a separate portion of the whole is incapable of severance, and- of being set off by metes and bounds. Nor does the language of the statute in its terms necessarily preclude such a construction. After declaring, that the creditor may, if he thinks proper, levy his execution upon the debtor’s real estate, it proceeds to state, among other things, that the appraisers “shall set out such estate by metes and bounds,” which words do not necessarily import, that the whole interest of the debtor in the lands shall be extended; but that the estate itself (that is, the land) shall be set out, that is,' described by metes and bounds. And this interpretation derives strength from the succeeding clause, as to estates held in joint tenancy, &c. And the clause as to rents rather confirms than impugns it. It is: “And when it so happens, that the real estate extended upon cannot be divided and set out by metes and bounds, as before prescribed, or by the description before mentioned, then execution shall be extended upon the rents of such real estate.” Now, an estate may as truly be'said to be capable of a division aud setting out by metes and bounds, by a division and set-off of an undivided interest in the whole, describing the metes and bounds of the whole, as by the division and set-off of an entirety of interest in a parcel of the whole, describing the parcel by metes and bounds. And even this is not required to be done in all cases; for undivided interests may be set off “by describing the same with as much precision as the nature and situation thereof will admit.” And it by no means follows, that, because a levy may be on rents, there cannot be a levy by metes and bounds, at the election of the creditor; as the cases of Barber v. Root, 10 Mass. 260, and Roberts v. Whiting, 16 Mass. 186, show.

But the case is not left open to mere reasoning upon the intent and language of the statute. The very point arose in Partridge v. Gordon, 15 Mass. 486; and indeed it was, though (strangely enough) it does not appear in the report, the turning point of the cause. I have been favored with a record copy of the statement of facts, upon which the judgment of the court was given. From that statement it appears, that Joshua Webb was sole seised of the demanded premises, one portion of which was a saw-mill, which he mortgaged to the female plaintiff, but no entry had been made under the mortgage. Prior to this mortgage, the premises had been attached by certain creditors of Webb, *806who afterwards levied their executions thereon, and the tenants claimed under the levies so made. On one of these executions a levy was made of seven eighths of the saw-mill; and on other executions levies were made on other parcels of the premises. The court decided, that the plaintiffs were entitled to recover the saw-mill, but not any other part of the demanded premises. So that the case must have turned upon the validity of an extent of an undivided part, where the debtor was owner of the entirety of a mill. This decision was made in May term, 1818. At the very next session of the legislature, by the act of February, 1819 (Act 1818, c. 15), it was provided, “that whenever a creditor shall think proper to extend and levy the same on any saw-mill, grist-mill, or other mill factory, mill privilege, or other real estate, which cannot be divided without prejudice to or spoiling the whole, and where the whole of such saw-mill, &c. is not necessary for the satisfying of such execution, the same may be extended, in manner prescribed by law, upon the same, or upon any undivided part thereof, which shall be sufficient to satisfy the same,” &c. &c. It is impossible to entertain a doubt, that this almost contemporaneous legislation grew out of the decision in the case of Partridge v. Gordon [supra]. Under such circumstances it cannot be correctly deemed to be merely affirmative of the pre-' existing law. Considering the decision, then, to be directly in point, it is a matter of local law conclusive upon this court, whatever doubts we might otherwise have been disposed to entertain.4

The circumstance, that there was at the time an existing mortgage upon one moiety, cannot vary the legal result; for Webb was, subject to that mortgage, owner of the entirety; and in point of law, the whole was-capable of being set off on execution,' as his property, although the creditors must have-taken it subject to the mortgage.. So is the doctrine in Warren v. Childs, 11 Mass. 222, and White v. Bond, 16 Mass. 400. Nor does it make any difference, that the deed to Webb was not recorded until long after the attachment and levy; for that was material only as to the rights of subsequent purchasers from the grantors; and completely vested the estate in Webb, as against the grantors themselves. So that the levy on the saw-mill, under which the defendants claim title, is wholly void; and It passed by the conveyance of Webb to John Gordon, and by that of the latter to the plaintiff.

Another objection was stated at the bar, that even if the levy of Lewis and Thacher, as executors, on the saw-mill was good, still they had no authority to convey the same, either under the will of their testator, or without a license of court under the general provisions of law, in cases of executions levied on real estate by executors and administrators. It is unnecessary to consider this point, because we have already decided the levy to be a nullity. I am authorized to say, that the district judge concurs in this opinion. There must, then, be a decree for a redemption of the mortgage, and for taking an account according to the prayer of the bill; and the cause must be referred to a master to take an account, and to make due report thereof to the court Decree accordingly.

[For subsequent proceedings, see Cases Nos-5,613 and 5,614.)