Darling v. Rollins , 18 Me. 405 ( 1841 )

The opinion of the Court was drawn up by

Weston C. J.

The course of proceeding, to be pursued in levying an execution upon real estate, is pointed out by the statute of 1821, c. 60, § 27. Appraisers are to be appointed, whose duty it is to appraise the estate, and to set out the same by metes and bounds. And the officer is to deliver possession and seizin thereof, that is, of the estate thus set out, to the creditor or creditors, his or their attorney. It is manifest then, that the appraisement, and the special designation of the estate, must necessarily precede the delivery of possession and seizin thereof by the officer to the creditor. It could not be done previously; and an attempt to do so, could be of no validity. It does not appear therefore, that the estate levied upon has vested in the creditor, and the execution thereupon satisfied. The levy was incomplete. The officer has not performed the duty, which the law imposed upon him, which is to deliver seizin to the creditor, after the appraisement, if he will accept it, and if he declines to do so, the officer should certify that fact, and that thereupon he returned the execution in no part satisfied. The judgment debtor or debtors, and others interested in the state of the title, might thereupon have access to record evidence that the levy had failed, and for what reason. And upon such a return, the creditor, who is not obliged to accept seizin of the land levied on, may have an alias execution.

But we perceive no reason why the original execution should be superseded. It issued regularly; and the officer, at the instance of the attorney for the creditor, performed important official acts, in obedience to its precept. That precept requires, that he make due return of his proceedings, in the performance of which both debtor and creditor have an interest. In our judgment, the order to supersede that execution, is not warranted by law.

Exceptions sustained.