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Vol. II.]

BARNEY v. LEEDS.

[No. 6.

only thing to which objection is now made is as to the character of the suit, and the want of opportunity of the state court, as a court, to act or refuse to act. There is no complaint made against the sufficiency of the bond.

It is said, we treat the state courts with disrespect in not allowing them to pass upon the case under the statute. We would treat them more disrespectfully if we disregarded and overruled their action, as it is admitted we would have the right to do in a proper case.

What might be the effect of the record of the state court being filed in the federal court before the term next after the filing of the bond and petition in the suit in the state court, upon the general status of the case, it is not necessary to consider. There possibly might be a question whether the case would be in every respect before the federal court prior to its

next term.

It may be admitted there are difficulties in any view we may take of this part of the case, but we are at a loss to understand how the fact that the state court has had the opportunity to pass upon the application can alone confer the right of removal, when it is admitted that the action or non-action of the state court may be immaterial.

If the petitioner has brought himself and is within the terms of the law, and the right of removal is complete, then when there is added to that a copy of the record duly filed in the federal court (and special bail given when requisite), the act of removal has taken place.

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The appraisal of a committee setting off a debtor's homestead upon the levy of an execution is conclusive upon the question of its value, until invalidated by some proceeding brought for the purpose of vacating or revising the record thereof. It cannot be called in question upon a subsequent proceeding for partition between the debtor and his creditor, to whom the residue of the estate has been assigned.

Whenever the estate of tenants in common is practically incapable of division by assigning to each owner thereof his equal portion in severalty, he cannot be compelled, by force of the provisions of sec. 25, ch. 228, Gen. Stats., either to sell his own share or purchase that of his co-tenant; but, in such case, resort may be had to a court of equity, which has power to compel a sale of the entire estate, and order distribution of its proceeds upon equitable principles.

PETITION for partition, under the statute, by Eleazer Barney against Carey Leeds. At the March term, 1873, there was judgment that partition be made, and, by agreement of the parties, N. B. Felton, Esq., alone, was appointed a committee to make partition.

At the September term, 1873, his report comes in, wherein he finds (1)

Vol. II.]

BARNEY v. LEEDS.

[No. 6.

that the premises cannot be divided without great prejudice; (2) that the value of the whole, September 22, 1866, was $800; (3) that on said twenty-second day of September, 1866, said Barney's interest in the premises accrued to him by the levy of an execution thereon; (4) that the right of said Leeds therein is a right of homestead existing at the time of said levy; (5) that the whole premises were appraised at $600 in making said levy; (7) that said Leeds, at the hearing before said Felton, demanded that the whole or a part of said premises should be set off to him by metes and bounds as and for a homestead, and claimed that said Barney was estopped from showing that the value of said premises was more than $600 at the time of said levy; (8) but the committee recommends "that the whole of said premises be assigned to said Barney, he paying to said Leeds, or securing to him in such manner as the court may order, the sum of $500 and interest thereon, unless said Leeds shall pay to said Barney, or secure to him in such manner as the court may order, the sum of $300 and interest thereon, or $100 and interest thereon, whichever of said sums the court may direct, — in which case I recommend that the whole of said premises be assigned to said Leeds; (9) subject to the exception of said Leeds, said Barney was permitted by the committee to testify as to his opinion of the value of said premises at the time of the levy, that it was much more than the sum at which they were appraised; and the committee reports that if said Barney's opinion in reference thereto was not competent, then he appraises the same at $600.

As to the qualification of said Barney to give such opinion, the committee finds certain facts, which were referred to the court and which appear in the opinion.

The defendant moved that the report be set aside, and also that it be recommitted, and filed eleven objections in writing thereto, as follows:

I. The plaintiff at the hearing before said committee failed to show himself competent, either as an expert or otherwise, to give an opinion as to the value of the premises bounded, described, and appraised by the levy of September 22, 1866.

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II. The plaintiff's rights depend upon and are measured by said extent, of which the appraisal was an integral part, and by which, as the court have decided (51 N. H. 285), “ the whole estate" was "appraised" "at $600." The committee, in substance, reports what was true, that there was no testimony before him, except that of the plaintiff, tending to show that the premises were worth at the date of the levy more than $600, and that he found the premises to be worth more upon the unsupported opinion of the plaintiff, he (subject to the defendant's exception) having testified that, at the time of the completion of the levy and the appraisal, the entire premises levied upon were worth $1,000.

The plaintiff cannot be permitted by his opinion to diminish the defendant's share and add $400 to the $100 set off to him by his own appraisers, by showing that they made a false or fraudulent appraisal.

III. The plaintiff is estopped from contradicting by his own opinion the appraisal, by men of his own selection, upon which his title rests.

IV. The order of the court (51 N. H. 287) was, that the defendant's share should be set out to him "by metes and bounds." The order of

BARNEY V. LEEDS.

Vol. II.]

[No. 6.

the committee, that the defendant should buy or sell real estate, contradicts and is in violation of the mandate of the court.

V. The defendant, under the homestead act, had the right to have set off to him "a homestead of the estate of the debtor, such as he may select, not exceeding $500 in value." So far as was in human power to do it, under the circumstances of the case, for it was beyond his power to foresee what values the committee might put upon the different parts of the premises, the defendant, at the hearing, made that selection or election. Neither the committee nor the court, by a fair construction of the two statutes, has the power, under the statute authorizing an assignment, to destroy the right of selection which the homestead act gives the defend

ant.

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VI. Sec. 25 of ch. 228, Gen. Stats. is permissive and not mandatory. VII. The phrase "one of the owners must be construed to mean the same as one of the petitioners.

VIII. This statute gives no power to compel a defendant tenant in common to buy real estate.

IX. It gives no power to compel him to sell his real estate.

X. The statute gives no power to compel a conveyance.

XI. If the statute confers upon the committee or the court the power to compel the defendant to buy the plaintiff's property and pay him $300, or to compel the plaintiff to buy the defendant's property and pay him $500, it is unconstitutional and void.

The questions of law thus raised were transferred for the consideration of the full bench.

Murray, for the plaintiff. I. The plaintiff was a competent witness; he had bought and sold land near these premises at or about the time of levy; he knew of other sales of land near these premises at or about the same time. See committee's report of facts. Gen. Stats. ch. 209, sec. 24. He was a qualified witness, in the opinion of the committee, to judge of such value.

II. The plaintiff was not estopped from showing the value of the premises after the committee found that the premises could not be divided without great prejudice or inconvenience. What is the meaning of estoppel? An estoppel is a preclusion of law, which prevents a man from alleging or denying a fact, in consequence of his own previous act, allegation, or denial of a contrary tenor. Steph. Pl. 239. Lord Coke said, "An estoppel is where a man is concluded by his own act or acceptance to the truth." Co. Lit. 352 a. say Blackstone defines an estoppel to be "a special plea in bar, which happens where a man hath done some act or executed some deed which estops or precludes him from averring anything to the contrary." 3 Com. 308. The law authorized the plaintiff to appoint one disinterested freeholder in the county as appraiser, the sheriff one, and the debtor one; and if the debtor refuses or neglects, the sheriff is then to appoint. They go on and make an appraisal, which, if it is too small, the debtor has the right to redeem within a year. Afterwards it becomes material for the creditor to show the true value of the premises. He has appointed one disinterested freeholder only now what act has he done which precludes him from showing the truth? The plaintiff has not been guilty of misrepresentation or concealment of material facts, upon

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[No. 6.

which the defendant has been induced to act, both essential elements in the question of estoppel. All the elements of estoppel are wanting in the case at bar, either by deed, judgment, or in pais; no question of estoppel can arise, for the estate of both is fixed by law; the defendant has an estate of $500 in value, and the plaintiff the residue. The court say, in Barney v. Leeds, No. 2, that the share taken and the share left are fixed by law, the debtor to have $500 in value, and the creditor the residue. The precise quantity of the estate of each is fixed by law, and is ascertainable at the option and upon the application of either tenant in common of the entire estate for a partition of it.

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III. The plaintiff and the defendant were tenants in common, and the court say that under Gen. Stats. ch. 228, the tenant, or the demandant, may cause partition to be made. Barney v. Leeds, 51 N. H. 281. The committee is to be governed by the provisions of said chapter. He upon his oath finds that the estate is so situated that it cannot be divided so as to give each owner his equal share therein without great prejudice or inconvenience. His duty was plain, for he had written instructions in his commission to be governed by said statute.

IV. The defendant holds under the act of 1851, and claims that he is entitled to a homestead by metes and bounds; but sec. 4 of the act of 1851 provides, that when the premises cannot be divided without injury and inconvenience, an appraisal of the whole value thereof is to be made, and, unless the execution debtor pays to the officer the surplus over and above the $500 within sixty days, the premises are to be sold. The same is done here in substance. He can have the whole by payment of $300; but if he refuses, then the plaintiff may take it and pay him $500,- so that in effect the defendant's right is not changed, and stands by these proceedings as well as by the other. The act does not contemplate that a debtor shall have homestead in all cases by metes and bounds, only when the premises can be divided without injury or inconvenience. Com. Stats. ch. 196, sec. 4. V. The phrase 66 one of the owners means one of the owners. See Comm'rs Supp. Rep. p. 11, where they say, "Erase 'petitioners,' and insert instead thereof owners.'

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VI. Partition is a matter of right. Morrill v. Morrill, 5 N. H. 136; Pickering v. Pickering, 20 N. H. 541. And there can be no constitutional objection, for such were the law and practice before the adoption of the Constitution. See Act of February 4, 1789. Sec. 25 of ch. 228 is like the act of 1789. See Constitution, art. 90; Mayo v. Wilson, 1 N. H. 56; State v. Rollins, 8 N. H. 550; Pierce v. State, 13 N. H. 536. Shirley, for the defendant.

FOSTER, J. The plaintiff, as a creditor of the defendant, caused the estate of the latter to be set off on execution. The entire value of the premises, including the homestead right, was appraised by the committee at $600, and they were set off to the creditor, "subject to a family homestead." As the result of these proceedings, the parties became tenants in

common.

Upon petition by the creditor for partition, the court decreed that the committee to be appointed to make partition should assign to the debtor so much of the estate as they might find to have been of the value of

Vol. II.]

BARNEY V. LEEDS.

[No. 6.

$500 on the day of the completion of the levy thereon, September 22, 1866. Barney v. Leeds, 51 N. H. 254. By agreement of the parties, N. B. Felton, alone, was appointed a committee to make partition. That committee has made his report, wherein he finds that the premises cannot be divided without great prejudice. He also finds that the value of the whole, September 22, 1866, was $800, or $200 more than the value appraised by the committee on that occasion. Upon the question of the value of the premises, the plaintiff was permitted to testify, subject to the defendant's exception; and the committee reports that if the plaintiff's opinion in reference thereto was not competent, then he appraises the premises at $600.

The first question, therefore, naturally presented relates to the competency of this testimony, concerning which the committee reports as follows:

"To qualify himself to give his said opinion, said Barney first testified that he had lived in the village in which said premises are situated for twenty years and over last past, and knew said premises in 1866, and about the time of the completion of said levy bought and sold similar real estate situated in said village, and near said premises, and had known other similar real estate in said village bought and sold by other persons about the same time, and at other times, and the prices at which the same was bought and sold."

We think the plaintiff's testimony indicated that he was abundantly qualified to express an opinion as to the value of the property, and if he was a competent witness concerning the subject upon other grounds, there was no error in the reception of this evidence.

But the defendant contends that the plaintiff is estopped by the proceedings of the extent upon which his title depends (a part of the machinery of which was a legal appraisal of the whole estate at $600), to aver a fact, or express an opinion, at variance with the result of that appraisal.

This position, if not technically correct, is so far practically sufficient for the defendant's case that the judgment of the appraisers upon the levy of the execution must be regarded as a conclusive determination of the value of the estate at that time. Although a man cannot probably be precluded by the doctrine of estoppel from entertaining and even expressing an opinion merely, that opinion is of no consequence if not available as evidence.

The appraisal was the solemn adjudication of the tribunal appointed by law to assess the "just value" of the premises. Comp. Stats. ch. 201, sec. 1; Mead v. Harvey, 2 N. H. 496; Hovey v. Bartlett, 34 N. H. 281.

It is as conclusive as a judgment rendered upon a legal verdict, and cannot be attacked in this way. The record must be held conclusive, until, by some proceeding brought to operate directly upon the record itself, the levy is avoided. Pratt v. Jones, 22 Vt. 345.

A petition for partition is not a proceeding to impeach, revise, or vacate the record of a former legal proceeding. A judgment, “so long as it stands in force, pro veritate accipitur, and cannot be contradicted." Lit. 168 a; Ladd v. Dudley, 45 N. H. 61, 66.

Co.

In Fletcher v. The State Capital Bank, 37 N. H. 369, at page 401,

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