Talitha Fox v. Alvah Hatch, 14 Vt. 340

The opinion of the court was delivered by Royce, J. The question to be determined is whether the real estate of a feme covert can legally be extended and set off on execution, in satisfaction of her debts contracted before marriage. It is contended that her legal disabilities are such, that the statute, authorizing the levy of executions upon land, cannot consistently or justly be carried into effect against her.

It is urged that she is necessarily deprived of all means of paying the execution, and thereby preventing a levy upon her land ; that she has not authority to agree upon or choose appraisers ; that she cannot redeem her land from the levy, nor procure it set aside, if defective. That these are serious and important considerations must be admitted ; and it is true that reasons of a character somewhat similar induced this court to decide, in Hunt v. Lee and others, 10 Vt. R. 208, that a person who was non compos mentis was not liable to be assessed by the listers for money on hand or debts due.

We do not, however, consider the reasons of that decision so conclusively applicable to this case as to justify us in pronouncing the levy void. The question there involved related only to a single class of assessments under the listing law, which can never be numerous nor of large amount. Past transactions could be affected only to a very limited extent, and existing rights to property could scarcely be at all disturbed, by the decision then made. In these respects, the case now before the court evidently requires a different consideration.

The law for setting off land upon execution has existed, w'ith little or no change, from the organization of our state government. It has never contained any exceptions, or special provisions, to meet a case of legal disability in the debtor. It is, therefore, impossible to foresee the consequences of such a determination as the plaintiff asks. We have reason, at least, to suspect that they might be extensive and disastrous.

In its operation upon the rights of a married woman, this law merely appropriates her land, at a sworn appraisal, to the payment of her own debts; debts for which she remains holden, notwithstanding her marriage, and, till quite recently, was subject here, as every where else, to be imprisoned. And if by statute her person is now exempted, justice cannot the less require that her property should be made liable. Every constitutional statute is to.be expounded and enforced according to the intention of the legislature. And that intention can only be collected from the terms employed to express it.

It is true that an intention, apparently expressed in a general provision, may be qualified and restricted, or even disproved entirely, by another intention specially expressed in the same statute. It is laid down as a rule, that where a general intention is expressed in a statute, and the same act also expresses a particular intention incompatible with the general one, the particular intention is to be considered in the nature of an exception. Dwarris on statutes, 86. The decision in Hunt v. Lee and others tends to illustrate these rules of construction.

It was there considered that the general enactment, authorizing such assessments, was not intended to apply to a case where the party assessed could not, by reason of incapacity, become availed of the benefits secured by certain special provisions in the same statute. But the means appointed for the legal proof and establishment of a debt are obviously of more intrinsic importance than those which only concern the mode of applying property in payment of it, when duly established. In this view the present case is plainly distinguishable from that just cited.

There the just liability of the party to be assessed could not be ascertained in the mode which the statute had prescribed ; whilst, in this instance, the debt was established against the plaintiff by a regular suit and judgment, in which her husband was joined as a co-defendant. And a suit thus instituted and conducted affords to the wife all the protection which common law or statute has ever provided. In the case cited the danger was that there might, in truth, be no just ground of liability ; but this case merely furnishes an occasion to surmise that the land may have gone at an under value.

Without deciding what influence this latter consideration should have in the case of a different disability, or even in the case of coverture under other circumstances, we can attach to it no great importance in this instance. The plaintiff’s husband, having an estate in the land so long as the marriage relation should continue, was directly interested with her in procuring a judicious and just appraisal. They were both debtors in the execution, and both..notified before the levy, in the manner directed by the statute.

We must, therefore, infer that her interests had the like protection upon that occasion as in the progress of the previous suit. Upon the whole, as this proceeding has conformed to the language of the statute, we think it must be considered as also within its spirit and meaning. > Judgment affirmed.