Where it appears from town records that the selectmen were empowered to acquire certain real estate for the public uses of the inhabitants, the validity of the purchase cannot be impeached in a proceeding for partition by judgment creditors of the grantor. If real estate against which a judgment in rem has been rendered is conveyed by the debtor, a subsequent levy of execution by the creditor, with knowledge of the conveyance, is fatally defective unless notice is given to the grantee to appoint an appraiser.
BLODGETT, C. J.
The plaintiffs' contention, that the town of Berlin could not lawfully obtain title to the premises in question by purchase, and that, consequently, they still remained in law the property of the grantors, even if well founded, is not germane to the present inquiry. The general doctrine is that if a municipal corporation exceeds its power in the purchase of lands, the courts cannot inquire into the question in a collateral way, or at the instance of an individual, but it can only be done at the instance of the state. Dill. Mun. Cor. (3d ed.), s. 574, and cases cited; Commonwealth v. Wilder, 127 Mass. 1, 6, 7. But however this may be, towns in this state being expressly empowered to purchase and hold real and personal estate for the public uses of the inhabitants (P.S., c. 40, s. 3), and the records of Berlin showing that the purchase of the premises in controversy was for such a use, the question of its validity will not and cannot be adjudicated in this collateral proceeding; for if there was such a misuser of the statutory power by the town as to render the title to the property so acquired subject to impeachment by the plaintiffs, all of whom it is found voted for its purchase, it is entirely plain that it cannot be done at their instance, at this late day, in any form of proceeding. Chamberlain v. Lyndeborough, 64 N.H. 563, 564, 565, and authorities cited.
The title set up by the plaintiffs in their petition cannot be sustained. The executions on which their levies were made were issued upon judgments in rem against the specific property levied upon, which was then in the occupation of the defendants as owners and which had been conveyed to them by the judgment debtors long prior to the levies, in good faith and for a valuable consideration, as the plaintiffs well knew. Under these circumstances, we are constrained to hold that the defendants must be regarded as "the debtor" within the true intent and meaning of the statute relating to levy by set-off (P.S., c. 233, s. 2; Fellows v. Hoyt, 69 N.H. 179, 180, and cases cited), and that consequently the levies were fatally defective because of the defendants' want of notice to appoint appraisers.
In view of this conclusion, there is no occasion to consider whether section 33, chapter 233, of the Public Statutes (giving to the person having the estate of the debtor his rights, privileges, and remedies as to all persons having notice) has any application to levies other than those upon equities of redemption.
Petition dismissed.
All concurred.