Fish against Sawyer, 11 Conn. 545

Bissell, J. It has been contended, in this case, that the plea of the defendant is insufficient. It is not necessary to decide that point;-because, admitting the averments in the plea to be insufficient, they are answered by the replication. The motion in error, then, presents two questions for adjudication. 1. Is the declaration sufficient ? 2. Upon the facts stated in the replication, and which have been found to be true, is the plaintiff entitled to judgment?

There is a third question, not raised upon the record, but which, by the agreement of counsel, has been argued, as on motion for a new trial; and that is, as to the effect of Mercy Sawyer's deed. These questions will now be considered, though not in the order in which they have been stated. 1. The exception taken to the declaration involves a single inquiry; and that is, whether debt on judgment lies, where there is an apparent satisfaction of the execution, issued on the judgment?

It is claimed, that scire-facias is the appropriate, and, indeed the only remedy, where there is an apparent, but not a real satisfaction of the execution. The case of Stoyel v. Cady, 4 Day 222., which has been cited, only proves that scire-facias will lie ; a point, in re- gard to which there is no controversy. In Denison v. Williams, 4 Conn. Rep. 402., it was determined, that debt on judgment is sustainable, without averring any special facts as a reason for bringing it. In the case of Williams v. Cable, 7 Conn.

Rep. 119., although the point now under considera- tion did not necessarily arise, yet debt on judgment and scire-facias are there considered as concurrent remedies, in a case like the present. And in De Forest v. Strong, 8 Conn. Rep. 513., where this question was much discussed, the court decided, that where debt on judgment was brought, in the case of a mistaken levy on lands, and judgment suffered by default, the judgment was not void, and could not be collate- rally impeached, by a third person.

Thus stand the authorities, in Connecticut, which have a bearing on this question ; and although in none of them is the point directly decided, yet their leaning certainly is in favour of the doctrine, that where there is no real, but an apparent satisfaction of the execution, debt on judgment well lies. And it is believed that the uniform practice, through the state, has been in conformity to this principle. We see no reason for disturbing the practice; as to it, there appears to be no well- founded objection.

There isno satisfaction of the judgment entered upon the record ; and nothing, to take the case out of the general prin- ciple, that debt lies upon a judgment which is in full force, and unsatisfied. We are, We are,therefore, of opinion, that the declaration is sufficient. 2. I 2. Inext proceed to consider the question arising upon Mercy Sawyer's deed.

And I do so, in this place, because if the question be decided one way, it ends the case, and renders a consideration of the remaining question unnecessary; it being it being admitted, that if Benjamin Sawyer took nothing under this deed, his precise interest in the premises was taken upon the execution; and the levy was well made. Did then the grantees take any, and if any, what interest, under the deed of Mercy Sawyer ? It is claimed, that the deed is void ; and on the ground that it creates a freehold to commence in futuro.

It is not, perhaps, strictly accurate to say, that this deed creates a freehold to commence in futuro. It conveys a fee, reserving a life estate in the grantor. And the precise question is, whether this be a mode of conveyancing, recognised and sanctioned by the laws of this state. And in considering this question, we do not think it necessary to enquire, whether, at common law, this conveyance may be supported, on the ground of a conveyance to stand seised : although it may well be questioned, whether a conveyance like this, would not now be sustained, even in England. Goodtitle d. Dodwell v.

Gibbs, 5 Barn. & Cres. 709. But however this may be, we entertain no doubt of the effect of this deed under our own laws. This mode of conveyance is believed to be co-eval with our government. See Barrett v. French, 1 Conn. Rep. 354., and note. In that case, Swift, Ch. J., in giving the opinion of the court, says : “ This mode of conveyance has been practised in this state, beyond the period of memory; and no inconvenience has resulted from it. This constant and immemorial usage is sufficient to make it a part of our common law.

And a deed of this description may be regarded as one of the assurances of real estates.” We are prepared, then, to give effect to every part of this deed. And we hold that it conveyed the precise interest which it purported to convey-that is a fee to the grantees, subject to a life estate in the grantor. Such being the effect of this deed, it is admitted, that Benjamin Sawyer, instead of one third, owned an undivided moiety of the premises, subject to a life estate of Mercy Sawyer, in an undivided third part of the whole.

The facts, then, set up in the replication, are well found to be true ; and the only remaining enquiry is, 3. Whether, upon these facts, the plaintiff is entitled to judgment ? And this enquiry is resolvable into another, viz., was the levy well made ? The officer, supposing that Benjamin Sawyer owned only an undivided third part of the whole, levied upon that, and caused it to be appraised. It was valued at 350 dollars. He then set off such proportion of Sawyers supposed interest, as 190 dollars, 73 cents, the amount of the execution, bears to 350 dollars, the appraised value.

Now, had Benjamin Sawyer owned an undivided moiety of the premises, unincumbered, we are not prepared to say, that the levy would have been void: because an appraisal of an undivided third part, necessarily involves an appraisal of the whole, and of every integral part. And by varying the proportions, the levying creditor’s interest might have been accurately ascertained. But the difficulty is, the part taken, was not unincumbered. Mercy Sawyer had a life estate in one third part; and this incumbrance pervaded the whole. No portion of the premises could be levied on and set off, free from this incumbrance.

The incumbrance has not been appraised ; and of course, there has been no appraisal of the debtor’s interest. The levy is, therefore, void. Starr v. Leavitt, 2 Conn. Rep. 243. The judgment seems to proceed on the ground, that as Benjamin Sawyer owned an undivided third part, in one right, that might be taken and set off, without any reference to the interest which he acquired in another right. But this view of the case is manifestly incorrect, for the reason that has been already given.

The whole interest of the debtor, should have been taken ; and it makes no difference, that his interest was acquired by different titles. Upon the whole, we think, that upon the facts found, judgment should have been rendered for the plaintiff. The judgment of the superior court must, therefore, be reversed. In this opinion, Williams, Ch. J., and Church and Huntington, Js., concurred.