Olmstead's Appeal from Probate.

not apply to the case, then the appellant is not aggrieved by the ruling of the court below, because he may even now raise the question in the probate court, the only tribunal in my judgment which has original jurisdiction of the question. To such a proceeding the decision of the Superior Court is no bar. Therefore a new trial will be of no advantage to him, and a refusal to grant a new trial will not prejudice him.

But the decision in this case I regard as objectionable in other respects. The Superior Court is an appellate tribunal. Its powers and duties in this case are measured by the powers and duties of the court below. Those powers and duties are clearly and distinctly defined by statute. Commissioners are "to receive and decide upon the claims of the creditors of said estate." Gen. Statutes, Rev. of 1866, p. 417, sec. 67. The two following sections provide that they shall act upon the claims exhibited to them, and allow such as were exhibited in proper time, and are found to be justly and lawfully due; and their report to the court of probate must contain a list of all the claims exhibited to them, particularly specifying those which they have allowed and those which they have disallowed. Sec. 145, p. 440, provides that "whenever any person shall be aggrieved by the doings of the commissioners in allowing or rejecting a claim upon an insolvent estate, &c.," such person may appeal to the Superior Court.

It will not be claimed that there can be found in the statute the slightest intimation that commissioners have any power to hear and determine the question whether the court of probate has jurisdiction of the settlement of the estate in which they are called upon to act; nor, I am sure, can any language be found which can be so construed as to give them that power. This ought, I think, to be conclusive in respect to a statutory tribunal of special and limited powers.

The argument derived from the extreme cases supposed does not meet the question. I am not under the necessity of claiming, and I do not claim, that, in the case supposed, it is the duty of the commissioners to go forward and pass upon the validity of the claims, notwithstanding the supposed dead man may appear alive before them, or his death may be dis

Olmstead's Appeal from Probate.

proved by the most overwhelming testimony. What I claim is that the commissioners have no official power to hear and determine whether the man whose estate is in settlement is dead or alive, or whether he resided in one probate district or another; and that the power to determine that question is in the court of probate alone. When a claim of that kind is made before commissioners their duty is plain-to postpone all action until the appropriate tribunal has settled that question.

It must be conceded that the court of probate has jurisdiction of the question. It cannot, I am sure, be successfully maintained that the commissioners have concurrent jurisdiction. No lawyer would venture to advise a client, who desired to arrest the settlement of an estate in a court of probate which had no jurisdiction, to institute proceedings for that purpose before the commissioners, even if they could be induced to entertain such a proceeding. Application would be made in due form to the court of probate, where the question could be regularly and properly tried; and, until finally determined, all proceedings before the commissioners, or in the Superior Court on an appeal from the doings of commissioners, would be stayed.

The Superior Court, acting pro hac vice as commissioners, and in their stead, has no more power to determine this question than they had. It may indeed determine its own jurisdiction, and for that purpose will inspect the record, or make inquiry aliunde, to see that the appeal is properly taken; but, in my opinion, it cannot in this proceeding determine the jurisdiction of the court of probate; and for the additional reason that it has no power to control the action of that court. The action of the Superior Court in allowing or rejecting the claim will be transmitted to the court of probate, and that court must conform its action thereto. But if the Superior Court on this appeal should advise the court of probate that it has no jurisdiction of the settlement of this estate, and direct it to suspend proceedings, it would be, it seems to me, a usurpation of jurisdiction as manifest and flagrant as the usurpation of the court of probate would have been if all that

Olmstead's Appeal from Probate.

is alleged in the third reason of appeal be strictly true; and I do not see why that court might not properly disregard such an order as coram non judice, and, with perfect propriety, proceed and complete the settlement of the estate. It has before it the report of the commissioners. Their doings in allowing or rejecting all claims in respect to which no appeal was taken, are unaffected by the appeal. Whether their judgment on the claims which are the subject of this appeal is or is not vacated, is perhaps an open question. Appeals from probate, unlike appeals from the judgments of justices of the peace, do not vacate the judgments appealed from, but they remain in force until actually reversed by the Superior Court. The judgment of the commissioners, in rejecting the appellant's claim, not being reversed, and the Superior Court refusing to take jurisdiction of the appeal, I think the court of probate would be justified in treating the original report as if it had not been appealed from.

There is danger that the doctrine enunciated in this case. will lead to a conflict of jurisdiction. Suppose the Superior Court should find one way on this question, and the court of probate, which certainly has the power to determine its own jurisdiction, should find directly the contrary; which finding is to prevail? If the judge of probate should feel constrained to follow his own convictions and disregard the order of the Superior Court,-regarding it, as he probably would, as an unauthorized interference with his duties,-by what process or by what authority can the Superior Court enforce its decree? No such authority is found in the statute, it is not found in any precedent, and I am not aware of any principle of the common law from which it can be derived. The Superior Court then is engaged in a futile and useless work, or it must resort to some power wholly unknown to the law to enforce its decree. A decision which results, or which may result, in such consequences, cannot, it seems to me, be a wise

one.

Kelsey v. Remer.

SUPREME COURT OF ERRORS.

NEW HAVEN COUNTY.

NOVEMBER TERM, 1875.

Present,

PARK, C. J., CARPENTER, FOSTER, PARDEE AND LOOMIS, JS.

GEORGE R. KELSEY vs. JOSEPH H. REMER.

An attachment resting upon land is an incumbrance upon it within the meaning of the covenant against incumbrances in a deed.

Where, after the attachment suit has gone into judgment, the covenantee in good faith pays the amount of the judgment, to free the land from the incumbrance, the measure of damages in a suit upon the covenant should be the amount so paid, if not greater than the value of the land, but if greater, then the value of the land.

Where an execution upon such a judgment had been levied upon the land attached, but by reason of irregularity in the proceeding the levy was void, but the lien of the attachment had not yet expired, and the covenantce in good faith paid the amount of the judgment, it was held that the law would give no weight to the fact that the attaching creditor might not have discovered the invalidity of the levy and made a new one before the attachment lien had expired, and that the covenantec was entitled to recover full damages.

COVENANT, for the breach of a covenant in a deed against incumbrances; brought to the Court of Common Pleas of New Haven County. The following facts were found by the

court.

The premises in question, known as the Savin Rock property, were on the 16th of September, 1870, owned by J. H. Dawe, T. H. Dawe and Thomas Scott, partners under the name of J. H. & T. H. Dawe & Co., who continued to own the same until the 15th of May, 1871, when they conveyed them to the defendant.

On the 19th of May, 1871, the defendant conveyed the 1 VOL. XLIII.-17

Kelsey r. Remer.

premises to the plaintiff, by a warranty deed, with a covenant against all incumbrances.

On the 16th of September, 1870, while Dawe & Co. were the owners of the property, one McGinn had attached the property in an action against them upon a claim against them in his own favor, upon a writ returnable, and afterwards duly returned, to the Court of Common Pleas for New Haven County at its October term in the year 1870. The writ demanded five hundred dollars damages. The parties respectively appeared in the suit and it came by regular continuances to the January term of the court in the year 1874, when the defendants made default of appearance and the plaintiff in the suit on the 22d of January obtained a valid judgment against them for $334.95 (including costs,) and on the 3d of March, 1874, took out execution in due form of law and delivered it to Hobart L. Hotchkiss, then a deputy sheriff of New Haven County, to be levied.

There was also another attachment put upon the property by Johnson & Ward, creditors of Dawe & Co., at about the same time with that of McGinn. Their suit was brought to the same court and went into judgment at the same term with that of McGinn, but it did not appear that execution was ever levied upon the property attached.

While the plaintiff was negotiating with the defendant for the purchase of the Savin Rock property he had no knowledge of any attachment upon the property, but on the day when he took his deed from the defendant (May 19th, 1871,) these attachments were spoken of, and as an additional protection to the plaintiff, but not in lieu of the covenant in the deed, the defendant signed an agreement to pay all expenses in defending against the suits.

About February 14th, 1874, the plaintiff learned that McGinn and Johnson & Ward had then or recently obtained judgments in their respective suits, and intended to collect the same out of the property, and on the 16th of February he wrote to the defendant, then in St. Augustine, Florida, stating the facts, and asking for instructions. The defendant received this letter about February 24th, 1874, but did not answer it.