Chandler v. Furbish , 8 Me. 408 ( 1832 )

D. Williams, on the other side, was stopped by the Court, whose opinion was afterwards delivered by

Weston J.

A judgment and execution, for which the defendant was jointly liable with the plaintiff, has been paid and discharged at the expense, and with the funds of the plaintiff. He thus makes out a case for contribution ; unless the defendant can show some just cause why he should he excused therefrom. He relies upon the seizure and sale of the equities ; one of which was sold as his property. But those sales were not perfected. The officer made no return of his doings. The title therefore to the equities remains unaffected, by any thing done under the execution. The defendant paid nothing, and has lost nothing. The only competent evidence of the seizure and sale, is the officer’s return.

In Ladd v. Blunt, 4 Mass. 402, Parsons C. J. distinguishes between a seizure of goods on execution, and an extent upon land. By the former the debtor is discharged, although the sheriff misapply or waste the goods, or does not return the execution. It is otherwise when land is taken. The title is not changed; unless what the statute requires to produce this effect, appears of record. If it does not, the land remains the property of the debtor, and the judgment is unsatisfied. There the fee or freehold was in question. But the same principle applies to an equity of redemption. That is an interest in real estate; and the seizure and sale must appear of record, to affect the title. No question of fraud or collusion, from the facts set forth in the exceptions, is raised here; that having been disposed of, as it is suggested, in the Common Pleas. The exceptions are overruled, and the judgment affirmed.