Gray v. Wass

The Court having taken time for advisement, their opinion was at this term delivered as follows by

Mellen C. J,

In the argument of this cause several points were made by the counsel: but only two of them seem to require a particular consideration.

1. Was Goodhue, at the time of receiving the appraised value of the demanded premises, &c, the attorney of the demandant, and as such authorized to receive it and if so, then

2. Did such payment of said value to said Goodhue, and his receipt of the same, divest the demandant of all the title to the premises which he acquired by the extent, without any release from him to the original owner, in the manner prescribed in the act of 1783. ch. 57.

It was urged by the demandant’s counsel that no one was authorized to redeem the premises but B-ucknam or his representatives or assigns ; and that therefore payment of the appraised value by Wass and Nash was wholly unavailing for the purpose of redemption. It is not necessary to inquire how far this position is correct, because the money was received and accepted by Goodhue in satisfaction of the appraised value of the premises demanded : and whether he was hound to receive it or not is immaterial.—He did receive it; and if, as Gray's attorney, he then had a right so to receive it, Gray is not permitted to make this objection. Wc must then inquire whether Goodhue, at the time of his receiving the money, was authorized to receive it as the attorney of Gray. It appears by the report that he was the person who instituted and prosecuted the suit, obtained judgment, and received seisin and possession of the demanded premises on which the execution was extended. Even if this latter fact were not expressly stated, still, the commencement and pursuit of this action, in which the demandant founds his claim upon the extent of the execution on the premises, is a ratification of such act of Goodhue-, It is evident that the object of Gray in placing his demand in the hands of Goodhue was the collection of it; and of course he must be considered as having delegated to his attorney the power necessary to effect, his in-tendon: and whatever power was thus delegated, remained un-revoked by any special act on the part of Gray, until the receipt of the money of Wass and Nash.

It is admitted by the demandant’s counsel that the power of an attorney continues until he has collected the debt which was committed to him for collection. But it is contended by him that in the present case the judgment which had been recovered through the agency of Goodhue was satisfied by the extent; that in this manner the amount of the original debt was then collected ; that the demandant could not have maintained an action of debt on the judgment, because the defendant would have pleaded the extent in bar, as a payment and satisfaction of such judgment. To this argument it may be replied that the extent of an execution on real estate is not always a satisfaction, either absolute or conditional; as in those cases where the estate on which the extent has been made is afterwards found not to have been the property of the debtor at the time of the extent. But even in other cases, where no such difficulty exists, the extent of the execution on real estate is not an absolute satisfaction of the judgment by such estate ; because the creditor’s title in such estate is not absolute: and until after the expiration of a year next following the extent, during which time the right of redemption exists, it is uncertain whether the judgment will be satisfied by real or personal estate.—If the estate be not redeemed, within the year, the title to it becomes absolute in the creditor; the judgment is then satisfied by real estate, and the attorney’s power is at an end. If the estate be -redeemed within the year, then the judgment is satisfied in money.—If then the power of an attorney continues till the original debt is collected, by satisfaction of the judgment or otherwise, why should it not be considered as legally continuing until the question is settled by the debtor whether he intends to redeem the estate or not? And when he has settled this question and redeemed the land by paying the appraised value, &c. why should not the attorney in the suit have the same authority to receive the money in such case, as he has to receive it two or three years after judgment, upon a pluries or altas pluries execution, in the usual mode of collection ? or to sue out process against bail, and collect the origin-pi debt of them ? This ho may do, and is bound to do, according to the decision in the case of Dearborn v. Dearborn, 15 Mass. 316.—We are well satisfied that this is the proper construction to be given as to the extent of an attorney’s power in cases like the present. This construction is founded on the peculiarity of our laws respecting the mode of satisfying executions by extending them on real estate, and the right of redemption allowed to the debtor—no such right exists in case of personal property sold on execution.—And in England no such mode is known of extending executions on real estate and divesting the title of the debtor, as is established by the laws of Massachusetts and of this State. Hence no cases parallel to this can be cited as authorities from any English Reports. From this view of the subject, we are of opinion that Goodhue was the attorney of Gray at the time and for the purpose of receiving the abovementioned sum of Wass and Nash in satisfaction of the appraised value of the demanded premises.

The counsel for the demandant contends, that this action can be maintained, notwithstanding the payment of the appraised value to the athorized agent and attorney of Gray, because the fee of the premises still remains in him, he not having released the same to Bucknam since the extent of the execution. By examining the before cited act, upon which this argument is founded, it will appear that such a case as the present does not seem to be contemplated.—The provisions of the act are applicable to a case where the creditor is in possession in virtue of the extent, and upon tender of the sum due, refuses to execute a deed of release; and in such circumstances it is provided that the debtor may maintain an action of ejectment against the creditor to obtain possession. The very nature of the action thus given to the debtor, shews that tha. fee is considered to be in him, after he has paid or tendered to the creditor the sum to which he is justly entitled ; otherwise he could not maintain such an action. We are not disposed to give to the act so broad a construction as is contended for by the demandant’s counsel. Neither the words of it nor the reason of the thing require it.—The defendant is in possession of the premises, in the present case ; and needs no release from the creditor to protect him.—The judgment in this case leaves him in possession, and may be pleaded in bar t@ any future action.

In case of mortgaged premises, the Stat. 1798. ch. 77. provides a remedy, by bill in equity, for the mortgagee, in those cases only where the mortgagee has entered for condition broken. —It seems not to have been considered as necessary in any other case. If the mortgagor has paid the debt which the mortgage was made to secure, the mortgagee has no right to enter or maintain a writ of entry against the mortgagor.—He may resist such an action, according to the case of Winship v. Pomeroy, 12 Mass. 514. by shewing payment. Why should he not effectually resist and be permitted to retain his possession 1 What principle can demand of a Court of justice to sustain such an action, in favour of a man who has no claim which justice can sanction, against one who has paid the debt he owed to the satisfaction of his creditor, in order to relieve his estate from in-cumbrance ?

We can see no legal principles upon which the present action can be maintained ; and according to the agreement of the parties the verdict must be set aside and a nonsuit entered.