RICKER VS. HAM & AL. THATCHER, J., said the case seemed to him to present two distinct questions proper to be referred to the jury; the latter of which he thought had not been clearly laid before them in the charge given to them at the trial. The first question was on the validity of the deed [*142 ] * from Gowen to Ricker, executed on the 8th of January, 1810; which (as it was admitted that Leighton and Heath were bona fide creditors to Gowen, and their levy regular in all its parts) was, he thought, clearly fraudulent as to them; and that the levy vested a good title in fee to the land, subject to be defeated only by a payment of the judgment, &c., within a year, by Gowen or his assignee. The second question was, whether the transactions between Leighton, Gowen, and the Hams, relative to the claim and possession, which Ricker had acquired posterior to the levy of Leighton and Heath, and in themselves unconnected with the aforesaid deed, were not fraudulent as to Ricker's right, whatever that was. This subject the judge thought was not submitted distinctly enough in the charge to the jury. But the whole charge was confined to an inquiry whether the deed of the 8th of January was fraudulent or not; and, from the facts in the case, he was inclined to think that, although that deed was a fraud upon Leighton and Heath, and so void, yet Ricker might after that lawfully and honestly have acquired such an interest in the same land as the law would protect against conspiracy and fraud in others; and it became a question of importance to Ricker to have that fully inves tigated. The report states that, in December, 1810, eleven months after the execution of the fraudulent deed, Ricker paid, of his own money, to Leighton and Heath the amount of their judgment, with the costs and charges, and they engaged to give him a discharge of their levy. About the same time, the land was actually set off to him by Gowen, with whose knowledge the said payment was made, and under circumstances that a jury might find the Homs had full notice. In addition to this, Ricker then took possession of the land, fenced it, and kept open possession of it until the commencement of the present action. All which facts, being submitted to a jury, and found by them, he thought would warrant the conclusion that there was a fraud committed by Leighton, Gowen, and [*143] the Hams, * upon Ricker; and that the deeds from Leighton to Gowen, and from Gowen to Ham, were "oid; and consequently the right and possession of Ricker, what RICKER US. HAM & AL. ever they were, remained in him, and were sufficient to enable him to maintain trespass against the defendants. (a) Per Curiam. Judgment on the verdict. (a) [The true view of the case seems to be that Ricker, claiming under a voluntary deed from Gowen, the validity of which he could not dispute, by paying the full value of the land to Leighton in discharge of the execution levied upon the premises long before the second deed of Gowen to the Hams confirmed his own title; it being well settled that a voluntary conveyance may be made good by subsequent transactions. Wood vs. Jackson, 8 Wend. 9. Eliason Sterry vs. Arden, 1 Johns Ch. Cas. 271. vs. Parr, 1 Eust, 95. Rodgers vs. Langham, 1 Sid. 133. By the payment of the amount in the execution the claim Leighton and Heath was extinguished, and, besides, the release by them to Gowen, if it was of any consequence, enured to the ben efit of Ricker. - ED.] JAMES BARRETT versus AARON PORTER. Where it appeared, on the return of an extent of an execution on land, that three appraisers were appointed and sworn, and that all the three had acted in the appraisement, although the certificate was subscribed by two only, and no reason given why the third did not subscribe, it was holden, that the return might be sustained. (1) Where, at the time of the conveyance of land, a part of it was under attachment at the suit of a creditor of the grantor, and afterwards execution in the same suit was extended thereon, this was holden to be an encumbrance within the covenant in the deed, that the title was free from encumbrances. The extent was holden to be an eviction; and the appraised value of the land extended upon was made the measure of damages. IN covenant broken, on a conveyance of land with a covenant that the premises granted were free of encumbrances, it was agreed that, prior to the conveyance, a creditor of the grantor had attached the same land on mesne process, and after the conveyance had extended his execution on a part thereof. Mellen, for the defendant, objected to the service and return of the execution, that the appraisement was certified and subscribed by two only of the appraisers, although three were sworn, and the one who did not sign the certificate acknowledged the receipt of his fees as an appraiser. No reason was assigned for the omission of his subscription. (2) But the Court thought, on the ground that it appeared that three were duly appointed and sworn, and that there was evidence that the three had acted under their appointment, the return might be sustained. (1) Moffit vs. Jaquins & Al. 2 Pick. Rep. 331. 11 * (2) 8 Mass. Rep. 284. 125 BARRETT US. PORTER. Mellen then contended that, as no actual eviction of the plaintiff was shown, and it did not appear that he had removed the encumbrance, by redeeming the land, he was entitled to nominal damages only; and he cited, to this point, the case of Prescott vs. Trueman. (2) * The Court observed that here was an actual eviction under a paramount title, and as this had been ruled, in the [ * 144 ] case last cited, to be a breach of the covenant against encumbrances, the proper measure of damages would be the sum at which the land was appraised, with interest thereon from the time of the eviction; and judgment was entered accordingly upon the default of the defendant. (2) 4 Mass. Rep. 627. BENJAMIN PATTERSON AND ANOTHER versus THOMAS BUCKMINSTER AND TRUSTEE. Where, in a foreign attachment, the trustce had disclosed, but in a manner not satisfactory, and a further examination was ordered to be had before a justice of the peace, to which the trustee refused to submit, and before the next term the principal debtor and the trustee died, judgment was entered against both as of the preceding term. ACTOR PATTEN, the supposed trustee, came into Court at the last May term, and made a disclosure, which not being sufficient, a further examination was ordered to be taken before a justice of the peace. Patten refused to submit to such further examination; and he as well as Buckminster, the principal defendant, both died before the present term, the latter having been defaulted before his death. The Court adjudged Patten to be the trustee on his first disclosure, and ordered judgment to be entered against Buckminster as of the last May term, and that execution issue as of that term against his effects in the hands of Patten. 126 CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COUR1, FOR THE COUNTIES OF CUMBERLAND AND OXFORD Of the sale of non-residents' lands for the payment of taxes. [Where the question was, whether the officer who sold the lands was duly chosen and qualified, and whether he acted by virtue of assessments duly made, and whether due notice was given, held, that, after the lapse of thirty years, they might lawfully presume that all was done according to law. ED.] In this action, the said proprietors demand one hundred acres of land in Brunswick, counting upon their own seisin within thirty years, and upon a disseisin by the tenant. A trial was had upon the general issue, before Thatcher, J., October term, 1815. The tenant admitted the original right of the demandants to the land in question, but claimed to hold the same under a deed from one Ephraim Hunt, as collector or con stable of Brunswick, for taxes assessed on the same as land of non PEJEPSCUT PROPRIETORS vs. Ransom. resident proprietors; and he produced the deed of said Hunt tc Samuel Thompson, dated the 8th of May, 1780, purport[146] ing to convey "1700 acres of undivided * land, 100 acres claimed by Samuel Cothran, and 936 acres belonging to the heirs of Hannah Fayerweather," all which lands are stated in the deed to have been assessed in the sum of £368 12s 4d., and for the non-payment of the said sum, to have been sold to said Thompson, at public auction, according to law, for the sum of £479 5s. 6d., being the amount of the taxes and intervening charges, and he being the highest bidder. The tenant also proved that the demanded premises were parcel of the said 1700 acres, and that the said Thompson entered upon the said 1700 acres soon after the said conveyance, and exercised acts of ownership thereon. The tenant also gave in evidence the copy of a record of the town of Brunswick, showing that Hunt was, at a town meeting olden May 4, 1779, chosen and sworn as constable for the year 1779. The tax bills of the town, signed by certain persons as assessors, were produced, by which it appeared that the three several parcels of land mentioned in said deed were separately valued and assessed; and it also appeared that they were bid off in several ots at the auction. There was some evidence which went to show a want of conformity to the requirements of the law as to the adver tisements prior to the sale. The demandants insisted that the tenant, to establish the validity of the said deed from Hunt to Thompson, should be holden to prove that the said Hunt had been duly chosen into office at a legal town meeting, duly called for that purpose, and that he acted by virtue of assessments committed to him by assessors, also duly chosen at a .egal town meeting for the purpose. But the judge who sat at the trial ruled that, as the copy of the record of the choice of Hunt had been produced, together with the bills committed to him to collect, it might be presumed that all the other prerequisites for giving him authority were complied with. The demandants also insisted that the said deed of Hunt must be inoperative, inasmuch as the three tracts of land men[*147] tioned therein were taxed separately in the * tax bills, and were sold separately at the auction, but were nevertheless in the said deed alleged to have been put up for sale, and to have been sold, for one sum in gross, including the taxes and charges of sale on all the said parcels; so that the proprietor of each parcel could not have ascertained therefrom what part of the consideration stated in the deed it would be his duty to tender, in order to redeem his land. But this point was likewise overruled by the judge. |