Boothby v. Stanley , 34 Me. 515 ( 1852 )

Howard, J.

The title of the petitioner to the premises claimed originates in a sheriff’s sale, on execution, of an equity of redemption of a mortgage, and depends upon the sufficiency of the proceedings of the officer in effecting the sale and conveyance. Unless he complied with the requirements of the statute, in the transaction, the sale was inoperative, and gave to the purchaser neither seizin nor title.

Preparatory to the sale, the statute provides, among other things, that the officer shall cause notifications of the time and place of sale “to be posted up in some public place in the town where the land lies,” &c. R. S. c. 94, <§> 37.

The land in this case lay in the town of Leeds, and the officer’s return states, that he gave “ public notice of the time and place of sale, by posting up notifications thereof in the said town of Leeds, and also, by posting up notifications thereof in two public places in each of the adjoining towns, of Wayne and Monmouth,” &c.; but does not state that caused notifications to be posted up in some public place in the town of Leeds. This is not in compliance with the requirements of the statute.

The return appears to have been first written so as to read, that the notifications had been posted in two public places in said town of Leeds. But the word two is altered to the, and the words public places in are erased, as if by the mark of pen and ink drawn across, with a design to obliterate them. It is not suggested, that the alterations were not made by the officer ; or that the return is not in conformity with the facts. So far as they are traceable, these alterations appear to have been made in the same ink and handwriting with the body of the return. In such cases, fraud cannot be presumed, unless the ordinary rules of presumption of honesty and innocence be disregarded. The alteration of any legal instrument, in the absence of proof, or satisfactory explanation, to the contrary, should be presumed to have been made simultaneously with the instrument, or before its execution. 1 Greenl. Ev. § 564 ; Gooch v. Bryant, 13 Maine, 386. But if the rule were otherwise, as the return was introduced by the petitioner, the respondent is not called upon to explain any circumstances of suspicion attending it, tending to its impeachment.

We cannot regard the portion thus erased as any part of the return; and consequently, must hold the notification posted in Leeds to be insufficient, and the sale and deed by the officer to be inoperative. Franklin Bank v. Blossom, 23 Maine, 546; Abbott v. Sturtevant, 30 Maine, 40; Grosvenor v. Little, 7 Greenl. 376.

The sale being void, the petitioner has not shown either legal title, seizin, or possession of the premises, and cannot have partition. R. S. c. 121, § 2, 11; Marr v. Hobson, 22 Maine, 321. Petition dismissed.

Sheplev, C. J., and Tenney, Rice and Appleton, J. X, concurred.