Howe v. Ward

• Decision Date: 01 May 1826
• Citation: 4 Me. 195
• Parties: HOWE v. WARD
• Court: Maine Supreme Court

4 Me. 195

HOWE v. WARD

Supreme Judicial Court of Maine, Cumberland

May, 1826

[Syllabus Material]

IN this case, which was an action of trespass quare clausum fregit, the defendant justified under an extent made upon the locus in quo July 16, 1824, as the property of one Waterhouse; and the plaintiff claimed the land by virtue of a deed from Waterhouse to him, dated April 5, 1823, subsequent to which time Waterhouse had continued to occupy the land as his tenant. This conveyance the defendant sought to impeach on the ground of fraud.

At the trial, before Preble J. at the last November term, it appeared on the part of the defendant, that on the 13th day of September 1821 one James March, being appointed a deputy sheriff, gave bond to the sheriff, in which Ward and Waterhouse, with two others, were sureties; --that March died insolvent about the first of April 1823; --that the sheriff sued this bond against the sureties, and recovered judgment at March term 1824, by default, for the penalty, with an award of execution for $ 377,06. This execution was fully paid by Ward, May 14, 1824. The sum for which it was awarded was composed of the sheriff's proportion of fees, accrued from the date of the bond to the time of March's death together with the amount of a judgment which one Washburn recovered at the same term, against the sheriff, for March's neglect in not paying over moneys he had collected on an execution in favor of Washburn, which was issued after October term 1821, and was returnable in January 1822; prior to which time March had received the money.

Ward sued Waterhouse May 18, 1824, for his proportion of the money thus paid to the sheriff; and having recovered judgment by default, extended his execution on the locus in quo, and proceeded soon after to cut the hay. The officer's return described the appraisers as " three disinterested men freeholders of said county" ; without certifying that they were " disinterested and discreet men, being freeholders" & c. in the words of the statute.

The bond given by March to the sheriff, upon his appointment to the office of deputy sheriff, was conditioned, among other things, that he should " refuse to accept or hold the office of constable of any town within said county of Cumberland."

Upon this evidence the plaintiff's counsel, at the proper stages of the cause, objected; 1st--That Ward had no right to impeach the conveyance from Waterhouse to the plaintiff, because, at that time, he was not a creditor; 2d--That the bond to the sheriff was an illegal bond, and could not be enforced at law, as it restrained the deputy from serving in the office of constable, which the statute made it his duty to do, if elected; 3d--That the levy of Ward's execution against Waterhouse was void, because it did not appear that the appraisers were " discreet" men, as well as disinterested, and freeholders.

These objections the Judge overruled, in order to try the principal questions of fact; and permitted the defendant to offer evidence to prove that the conveyance by Waterhouse to the plaintiff, was made for the purpose of putting the property out of the reach of the sheriff, in any suit upon the bond; of which the plaintiff was conusant; and that it therefore was in law fraudulent and void. And upon this point, after hearing evidence on both sides, the jury returned a verdict for the defendant; which was taken subject to the opinion of the court upon the points made by the plaintiff at the trial.

Greenleaf and Frost argued for the plaintiff; 1st--That to entitle the defendant to impeach the conveyance for legal fraud, it must appear that he was a creditor at the time it was made; and a surety has not the character of a creditor till the rendition of judgment against him. Fales v. Thompson 1 Mass. 134. 1 Dane's Abr. 628, sec. 20.

2. The bond from March to the sheriff was illegal, because it was conditioned to refuse an office which the statute of 1821 ch. 116, made it the duty of every citizen to accept, under a penalty enacted against his refusal to take the oath of office. For where a duty is prescribed by statute, a bond conditioned to omit it is wholly void, even though it contain other conditions which, if standing alone, would be good. 5 Vin. Abr. 98, Condition Y. pl. 7, 8. Guppy v. Jennings 1 Anstr. 256. Wheeler v. Russell 17 Mass. 258. Layng v. Paine Willes 571. 3 Bac. Abr. 703-705. tit. Obligation.

3. The extent was void, because it does not appear that the appraisers were " discreet" men. The statute requires that they should be not only " disinterested," or free from bias, and " freeholders," practically acquainted with real estate; but " discreet" men; that is, men capable of discerning its true value; and not imbecile of judgment. Each of these qualifications is made indispensably necessary in an appraiser; and every thing made necessary by statute, must appear in the officer's return. Williams v. Amory 14 Mass. 20, 29. Eddy v. Knapp 2 Mass. 154. Ladd v. Blunt 4 Mass. 402. A creditor claiming under this sort of involuntary conveyance, must shew a strict compliance with every statutory provision. Waterhouse v. Waite 11 Mass. 207. Bott v. Burrell 11 Mass. 163. Tate v. Anderson 9 Mass. 92. Allen v. Thayer 17 Mass. 299. And of this defect even a stranger may take advantage, the extent being merely void. 7 Bac. Abr. 68, tit. Void & Voidable F.

Longfellow and Adams, for the defendant, replied to the first point, that the plaintiff's deed, being found to be fraudulent, was void as well against subsequent as prior creditors. The principle contended for by the plaintiff applies only to voluntary conveyances, and not to those which are fraudulent. Damon v. Bryant 2 Pick. 411. Roberts Fraud. Conv. 17, 27, 521, 522. And if it were not so, yet the defendant was a creditor at the time of the conveyance, the condition of the bond being then broken, and the rights of all parties fixed.

To the second point they said, that the statute of this State could not be construed imperatively to require the acceptance of any town office; but was rather to be understood as conferring the privilege to accept or to waive it; and that this objection was not open to the plaintiff, he being a stranger to the contract, and his title illegal.

The third objection, they also insisted, the plaintiff was not entitled to take, for the same reasons. Dagget v. Adams 1 Greenl. 198. Lawrence v. Pond 17 Mass. 433. Williams v. Amory 14 Mass. 20. Barret v. Porter ib. 143. Atkins v. Bean & al. ib. 408. Nor can the objection be sustained; for the law presumes every man discreet, till the contrary appears.

OPINION

MELLEN C. J. delivered the opinion of the court, at the ensuing November term, as follows.

In this case the plaintiff claims title to the locus in quo under a deed from Waterhouse to him, bearing date April 5, 1823; and the defendant claims title to it in virtue of the levy of his execution thereon, as the property of said Waterhouse on the 16th of July 1824. If, as against Ward, the close passed by the deed to the plaintiff, then the objections to the bond and the levy are of no importance, as the conveyance was prior to the levy. If, as against Ward, the deed was fraudulent and void, then the plaintiff has no title to maintain the present action for merely taking hay from the premises in question, although, at the time of the levy, Waterhouse occupied the same as tenant of the plaintiff; such an act of trespass being an injury to the tenant, and not to the landlord, as was decided by this court in the case of Little v. Palister 3 Greenl. 6. These objections may therefore be laid out of the case; and the only question for consideration is, whether Ward, at the time the deed was given, was such a creditor of Waterhouse, or was so situated in relation to that conveyance or is so affected by it, as that he is thereby entitled to contest its operation, by shewing that it was in its origin fraudulent, and made with intent to defeat the rights of creditors. Upon the evidence which was admitted to the jury, for the purpose of shewing that such was the character and design of the deed, they returned their verdict in favor of the defendant. Was the proof properly admitted? The main question presented in this cause is worthy of consideration, in two points of view. The first inquiry is whether Ward may be considered as having been a creditor of Waterhouse, at the time the deed was executed; and the second is, whether the deed was made under such circumstances, and with such fraudulent intentions, as to be void with respect to Ward, if not then a creditor by virtue of the statute of 13 Eliz. ch. 5, which has been adopted here as common law.

The consideration of the first point leads us to the examination of some of the peculiar rights and liabilities of sureties. So far as the obligee of a bond, or promisee of a note, is concerned, the principal and sureties are each and all equally liable; but as between or among themselves, each surety is liable only for his proportion; and such proportion will depend on the number of sureties, in case none of them prove to be insolvent or negligent. What then is the legal relation in which one of the sureties stands to each of the others? The answer is, at the time of executing an instrument by several persons as sureties, each one impliedly promises all the others, that he will faithfully perform his part of the contract, and pay his proportion of loss arising from the total or partial insolvency of the principal, and to indemnify them against any damages by reason of his neglecting so to do. A similar promise is implied on the part of the principal, to indemnify and save harmless each of the sureties. This promise, in both cases, is conditional in its nature. The...