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Vol. II.)

BARNEY v. Leeds.

(No. 6.

Sawyer, J., says: “The return of the officer and the certificate of the appraisers embodied in it or accompanying it, and thus constituting an essential part of the return, which makes the record title, so far as it sets forth their acts and proceedings required by law in making the extent, must be held to be conclusive when set up by one claiming title under the extent. The case falls within the general doctrine in relation to the returns of officers upon process, that as to the parties, and those claiming as privies, and all others whose rights and liabilities are dependent upon the proceedings, the return of matters material to be returned is so far conclusive that it cannot be contradicted for the purpose of invalidating the proceedings or defeating any right acquired under them. And the principle, in its application to the return of an extent, derives a double support from the record nature of the title acquired, and the infinite mischief that must result from holding that as such record title of real estate it is open to the uncertainties of parol proof, in reference to the acts and doings of those whose proceedings are essential to its validity.” The proposition here is to show by parol that the appraisers erred in their judgment as to the value of the estate set off. Upon that question, in the absence of any proof of fraud, their judgment is conclusive.

But the defendant insists that the court has no power under the statute to require either one of these parties to sell or purchase the surplus of the estate after the assignment of the exempted portion.

The position is : 1. The court, in passing judgment upon the former case reserved between these parties, and reported in 51 N. H. 287, prescribed and directed that partition should be made between these parties “ by metes and bounds,” and not otherwise. 2. By virtue of the homestead act, Comp. Stats. ch. 196, the whole estate cannot be assigned either to the creditor or the debtor, except under the provisions of section 4 of that act, which it is said apply only to the case where the debtor does not make application to have his homestead set out, as provided in section 3. 3. Since the homestead act provides in section 3 for setting out to the debtor a homestead such as he “may select," it follows that, if he does make such application and selection, he is entitled at all events to have and to hold his homestead in severalty, and cannot be compelled to sell it to his creditor, for the reason that it cannot be conveniently divided and set off by metes and bounds; and as the result of all this, that, in a case like the present, where the estate cannot be divided, no partition can be had : hence the conclusion would seem to follow, that the party entitled to the homestead is also entitled to all the rest of the estate. 4. If the statutes relating to partition do not subserve this view of the law, they are unconstitutional.

These views are advocated in an able, lengthy, and ingenious argument; but whatever weight may be due to the argument or to portions of it, we fail to recognize and cannot reach the result indicated by the defendant's counsel.

In the first place, with regard to the purport of the judgment pronounced in the former case (51 N. H. 287), we think it ought to be as manifest to the learned counsel as it is certain in the minds of the court, that neither the court as a body, nor the author of the opinion, ever for a moment entertained the idea of directing that partition should not be

Vol. II.)

BARNEY v. LEEDS.

[No. 6.

made otherwise than by an actual setting out of a portion of the estato to each party by prescribed metes and bounds, provided it should turn out that the estate was practically incapable of such a division. That contingency was not contemplated or suggested, nor, indeed, was any formal order or judgment concerning the method of partition made ; but the court, quite naturally, followed the language of the statute in suggesting that the committee “should [not must] assign to the defendant by metes and bounds” his interest in the premises at the value existing on the date of the levy, — the only question raised by the case being simply as to the date of the computation of that value.

We have recently had occasion to reiterate and affirm the settled doctrine, that in this country the power of compelling partition is incident to all estates held by tenants in common. In this state it is matter of right, and does not require equity for its enforcement. 1 Washb. Real Prop. 581; Morrill v. Morrill, 5 NN. H. 136; Hoyt v. Kimball, 49 N. H. 322, 328.

We fail to discover in section 4 of the homestead act any limitation of the provisions of the section to the case only in which the debtor has made application to have the homestead set out to him, nor does any reason for such limitation occur to us; neither can we regard the plaintiff as estopped to ask for partition, by his failure to pursue the remedy given him by section 4, which remedy was not indicated by the form of the proceeding adopted by the appraisers at the time of the extent. We do not regard the form of the appraisal and extent, namely, an appraisal of the estate at $600, and the setting off the creditor's interest in the same as of the value of $100, subject to the debtor's right of homestead therein, as any indication of opinion, much less a formal judgment of the appraisers that the estate was incapable of partition.

Now this estate is found to be incapable of partition by metes and bounds, and the debtor is entitled to his homestead, — but just as much is his creditor entitled to the payment of his honest demands out of the residue of the estate; and we cannot conceive that the homestead act was ever intended to receive a construction that should enable a dishonest debtor to hold, exclusively, a large estate, including a homestead which could not be conveniently separated from it, without yielding up something to the creditor by way of equivalent for the surplus estate.

The law intended a favorable regard for a poor debtor, but not immunity and protection for a dishonest one. In providing for the debtor's relief, it does not ignore the creditor's rights. But the defendant insists that he ought not to be compelled to sell his own homestead right, which is absolutely secured to him by the law, nor to purchase contrary to his will the residue of the premises. And there is very great cogency in the suggestion. However it may be in this particular instance, a case may readily be supposed in which such a requirement would be, if not impossible of execution, at least productive of great hardship and injustice. Suppose a piece of real estate absolutely incapable, in the judgment of the court's committee, of division, and worth $20,000, the property of two brothers, derived by inheritance from their father, and that neither of them has any other property: the right of both to have partition, so that each may have and enjoy his estate in severalty, is beyond question to be VOL. II.

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Vol. II.)

BARNEY v. LEEDS.

[No. 6.

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regarded as the law in this state. This right, of course, is and must be qualified so far as this, - that if the estate is absolutely indivisible, an actual share or part of the premises cannot be given to each. But in the recent case of Crowell v. Woodbury, 52 N. H. 613, 615, it was shown that “ long before any court having general chancery powers was established in this state, the concurrent jurisdiction of equity, in making partition of land held in common by co-parceners and tenants in common, had become perfectly established,” and that since 1832, when full equity powers were conferred upon the court, the nearest practicable approach to a literal division of the thing itself may be secured by an application of the modes adopted by courts of equity to effect the object, – that is, by decreeing a sale of the whole and a division of the proceeds, or such other means as are appropriate to the special circumstances and situation of each particular case. This makes it certain that the right to a partition is sustained.

But nothing can be clearer than that an assignment of the whole to one, and an order that he shall pay to the other the estimated value of his share, is no partition at all. It is, in effect, a forced sale of the share of one to the other, — a compelling of one to purchase the portion of the

a other, whether he wants the property or not, and whether he has the means to buy it or not, at a price which he has nothing to do with fixing.

It is thus observable that serious, and, as it seems to me, insuperable difficulties, both practical and legal, stand in the way of giving to sec. 25, ch. 228, Gen. Stats, a construction whereby such forced purchase is compelled.

Now, in the case supposed of the two brothers, who have inherited an indivisible estate of large value, and who have no other property, the whole being assigned to one against his will, a debt of $10,000 is imposed upon him against his will : how is he to pay or secure it ? He may, perhaps, — not certainly, - if he so chooses, make security by way of a mortgage of the whole. But suppose he objects to the burden of so large à debt, and declines to execute the mortgage : what then? The other party must sue the judgment, and, there being no other property, he must seek security by an attachment of the whole estate which has passed to his brother by force of the judgment upon the so-called partition. A levy of an execution makes the parties tenants in common again, inasmuch as the premises cannot be divided ; Gen. Stats. ch. 218, sec. 8; and the parties find themselves at last just where they started, except that they have incurred the expense and amoyance of fruitless litigation. All this is but folly, injustice, and oppression.

We are therefore of the opinion that the statute under consideration (Gen. Stats. ch. 228, sec. 25) is capable of no other construction, when applied to a case like the present, than that the whole estate may be assigned to one party, provided he is willing to take it, he paying the other party the sum awarded by the committee; and that in all cases where division by partition under the statute cannot be made, by reason of the nature and situation of the property, the parties are left to the ample, flexible, and more appropriate remedies of equity, whereby the entire estate may be sold, and the rights of the parties settled and determined upon equita•ble principles.

Vol. II.]

SLOAN v. LEWIS.

(No. 6.

The plaintiff may, if he chooses, pay to the defendant $500, with interest from the date of the levy, whereby the defendant will receive the value of his homestead right; or, the defendant (who may have the right of election in this matter) may purchase of the plaintiff the surplus of the estate at the price of $100, with interest from the same date.

The report may be recommitted for amendment in accordance with these views, and if the parties act upon the foregoing suggestions, there may be judgment on the report as thus amended. Otherwise this petition Must be dismissed, and the parties left to seek relief by proceedings in

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Accrued interest constitutes part of a debt provable against the estate of a bankrupt. Where a record shows jurisdiction, an adjudication can only be assailed by direct pro

ceedings in a competent court.

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MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This action was commenced by an assignee in bankruptcy in a state court to set aside certain conveyances made by the bankrupt, in fraud of the bankrupt law, as is alleged. The proceedings in bankruptcy, under which the assignee was appointed, were involuntary, and one of the defences in the action is, that the adjudication of bankruptcy was void, because the record shows that the debt owing to the petitioning creditor was less than $250, and, consequently, the court had no jurisdiction in the premises. This defence presents the only federal question there is in the case.

If this is decided against the plaintiff in error, our jurisdiction is at an end, and we need not look further into the record.

The principal of the debt owing to the petitioner, as described in the petition, is a few cents less than $250; but, by adding the interest to the time of filing the petition, the indebtedness is increased to an amount far in excess of the requisite sum. The bankrupt act ($ 39) provides for an adjudication of involuntary bankruptcy upon the petition of one or more creditors, the aggregate of whose debts provable under the act amounts to at least $250. It becomes necessary, therefore, to ascertain what constitutes a debt that may be proved. The plaintiff in error contends that it is limited to the principal of a sum of money owing, while the assignee claims that it includes the principal and all accrued interest. To determine this question, we must look, in the first place, to the act itself. If the intention of Congress is manifest from what there appears, we need · not go further. Section 19 provides “ that all debts due and payable

Vol. II.]

Sloan v. LEWIS.

(No. 6.

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from the bankrupt at the time of the adjudication of bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the bankrupt.” And again: “All demands against the bankrupt, for or on account of any goods or chattels wrongfully taken or withheld by him, may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest."

There is certainly nothing here which in express terms excludes interest from the provable debt. On the contrary, there is the strongest implication in favor of including it. The object is to ascertain the total amount of the indebtedness of the bankrupt at the time of the commencement of the proceedings, and also the amount of this indebtedness owing to each one of the separate creditors. Accrued interest is as much a part of this indebtedness as the principal. It participates in dividends when declared precisely the same as the principal. One has no preference over the other, and for all the purposes of the settlement of the estate the bankrupt owes one as much as he does the other. Creditors prove their debts in order that they may participate in the management and distribution of the estate. Their influence in the management and their share on the distribution depend upon the amount of their several debts which have been proven.

Hence, in order to fix the equitable representative value of a debt not due, provision is made for a rebate of interest. if interest is to be rebated on debts not due, why not, upon the same principle, add it to such as are past due ?

The provision for adding interest to the value of goods wrongfully taken and converted is equally significant. Certainly no good reason can be given for withholding interest in cases arising upon contract and allowing it in cases of tort; and because it is expressly given in the last, and no provision is made for it in the first, the conclusion is irresistible that it was expected to follow the contract as part of the obligation.

We are all, therefore, clearly of the opinion that accrued interest constitutes part of a debt provable against the estate of the bankrupt; and if it does, it is necessarily part of a debt which may be used to uphold involuntary proceedings. It is only necessary, upon this point of jurisdiction, that the petitioning creditors should have owing to them from the debtor they wish to pursue, debts provable under the act to the required amount. The English cases referred to in the argument, in our opinion, have no application here. They are predicated upon the English statutes and the established practice under them. Our statute is different in its provisions, and requires, as we think, a different practice.

, This is conclusive of the case. The petition filed in the bankrupt proceedings distinctly averred that the debts due the petitioner exceeded the sum of $250, and, if interest is added, the particular indebtedness specified amounts to more than that sum. The court found this allegation true. That finding is conclusive in a collateral action. We have so decided in Michael v. Post at the present term.

Where the record shows jurisdiction, an adjudication of bankruptcy • can only be assailed by a direct proceeding in a competent court. Evi

dence, therefore, to show that payments had been made which reduced

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