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Vol. II.)

BARNEY v. LEEDS.

[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 defendant.

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 8500, 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 say the truth.” Co. Lit. 352 a. 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 Vol. II.)

BARNEY v. LEEDS.

[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.

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, — 80 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 " 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.'”.

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 ata $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

Sec. 25 of adoption of

H. 550;, art. 90,

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." Co. Lit. 168 a; Ladd v. Dudley, 45 N. H. 61, 66.

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

of This positidant's case tha regarded as rough

Vol. II.]

(No. 6.

BARNEY v. Leeds.

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.

Wlate of thuy, — the interest in (not

him berding adop form of the setting to the

made otherwise than by an actual setting out of a portion of the estate 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 N. 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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