The plaintiff claims relief in this case on the ground that the proceeding in the levy upon his estate and all proceedings to sell are void in law, and that the only effect of the proceeding is to cast doubt upon his, the complainant's, title, whereby he may be hindered and delayed in the sale of his land, if he desire to sell, subjecting him to suits for the vindication of his rights and to expenses of prosecution in defending them.
On the first hearing of this cause, a doubt was suggested whether the plaintiff had not a perfect remedy at law. But upon the examination of the authorities cited *Page 71 by the complainant's counsel, we can have no doubt that if these proceedings are void at law, they furnished a case calling for the interposition of a Court of Equity. The case of Couch etals. v. The Ulster and Orange Co. Turnpike, 4 Johns, Ch. 26, is in point. This was a case of levy on real estate of complainant for collecting a tax assessed upon it. The complainant claims that the assessment was illegally made and void. The chancellor stayed the sale until the respondent should satisfy him that the assessment was legally made, and recognized the doctrine, that where a doubt is cast upon the title by acts clearly illegal, a Court of Equity are bound to interfere.
The cass of Mitchell v. Dores, 6 Vesey, 147, recognizes the same principle.
Was the levy of the execution on the plaintiff's real estate void? If it was, the only effect must be to bring the plaintiff's title into doubt and diminish the value of the estate to him, preventing that full dominion and power of disposal, which every man is entitled fully to enjoy.
The complainant's counsel claimed that the levy was void.
The respondent claimed that the proceedings upon the execution were regular and legal, that, the school district being a municipal corporation, and their property having been exhausted by the levy under the first execution, he had a right to levy the residue of the debt upon the individual property of the individual corporators.
The counsel for the complainant claimed that however this might be at common law, such a rule had never been adopted as the law of Rhode Island. But, if such were the law, still that the respondent has not complied *Page 72 with the provisions of the statute, giving power to attach real estate, the officer not having returned, that neither the personal estate of Kenyon nor his body was to be found, and that, inasmuch as Clarke, the plaintiff in the execution, and Kenyon were members of the same district, neither could at law proceed against the other.
The question, whether the members of municipal corporations are or are not individually liable for the debts of the corporation, and whether the execution, issued against the corporation, can be legally levied on the individual's estate, is now, for the first time, raised in this State. The only municipal corporations, existing prior to the enactment of the School Act in 184, were towns. The mode of collecting debts against them was early provided for by the statute, and the same provision is now made for the collection of debts against school districts. As it is not likely that this question can ever arise again, and is not necessary to the determination of this cause, we give no opinion upon it
But assuming that the law upon this point is with the respondent, has he complied with the conditions, upon which only real estate can be permitted to be attached. The statute is, "that in all cases when execution shall be issued upon any judgment, where real estate was not attached on the original writ, if no personal estate can be found nor the debtor's body, the party obtaining judgment may cause execution to be levied on real estate."
This, in terms, applies to all cases, and there is no reason why there should be any exception. It has always been the policy of our law (whether wisely or not we need not say) to exempt real estate from attachment, so long as either the personal estate of the debtor or his *Page 73 body was within reach of process. This policy the legislature has not hitherto thought it expedient to abandon.
But the respondent's counsel insists, that this could not fall within the provisions of the act, because this execution is for the debt of the corporation, and the execution is against the corporation, whose property is exhausted and whose body cannot be taken, and that the respondent's right was to levy his execution upon whatsoever property there might be in the district, belonging to any of the corporators, and for that purpose to be treated as the property of the district, though actually belonging to individual corporators.
If the law, in relation to the liability of members of such corporations, really proceeded upon such principle, there would be some ground to claim that this case does not fall within the statute.
The only cases bearing upon this point, to which we have been referred, are those cited to sustain the point of the liability of the corporators individually. And these seem to proceed upon a different principle, and it is this, that, though the action is nominally against the corporation as such, yet from the issuing of the execution all the members of the corporation are to be treated as jointly owing the debt, and, therefore, it may be levied upon any one of them as in the case of any other joint debts.
The impossibility of naming all the inhabitants of a large district, would render it necessary to make the corporations the defendant nominally, though the corporators are the real debtors.
Now, if they are to be treated as debtors, and held liable in person or estate, because they are debtors, we *Page 74 do not feel at liberty to say that the estate can be attached in any other mode or under any other circumstances than is provided in the case of all other debtors.
There is one other point made in the case, which would more loudly call for the interference of the court, viz: that both these parties, from the commencement of these proceedings against the corporation down to this time, were inhabitants of the same district and members of the corporation. If either be liable, therefore, in his estate for this debt, the other is equally so. Suppose the debt levied upon this complainant. He will then have paid the debt of the corporation and will have entitled himself to an action for money paid to their use, and, upon obtaining judgment may in his turn, levy his execution upon the plaintiff, in this execution, and, if this could be permitted by the law, the debt may be tossed from hand to hand for an indefinite period, without ever being finally satisfied.
Or, if he has no remedy by suit against the corporation to be reimbursed, then he must have his separate action against every other corporator for his proper proportion, the sum paid leading to innumerable suits not to be tolerated.
But from the time when this respondent ceased to proceed against the corporation and proceeded to levy the debt on the individual corporators, he commenced proceeding for the collection of a joint debt against those indebted jointly with himself. From this time, at least, he stands in the execution both as plaintiff and defendant. Now, at law, no one can stand so related. The respondent could not have maintained an action, originally standing so related, and there can be no reason why, after a judgment, he should be permitted to assume *Page 75 any such position, merely because the form of the original suit did not render it necessary to make it apparent.
It is evident that if this debt can be levied in this way by a corporator, he will receive to a certain extent money to which he is not equitably entitled, and which he in good conscience ought to refund, and, as to the residue, will have put him of whom he levies it in the same situation as he was himself before the levy.
The full remedy after all must be in equity, and from necessity cannot be given at law.
Injunction granted.