Munroe v. Reding , 15 Me. 153 ( 1838 )

The opinion of the Court was drawn up by

Shepley J.

The plaintiff derived title from Abiel Wood, deceased, by a conveyance made by his administrator, who was licensed to sell at public or private sale. Exceptions were taken to the authority of the administrator to convey, which were waived at the argument; and it is not therefore necessary to consider them.

To prove Wood’s title, a copy of the record of the proceedings in the levy of an execution, issued on a judgment recovered by Wood against the tenant, were read. The counsel for the tenant objected to the sufficiencjr of these proceedings to convey the title, because it appeared, that but two of the appraisers had signed the certificate of their doings. To obviate this objection, the plaintiff was erroneously permitted to read the deposition of Lewis Wilson, to prove that the appraiser, who did not sign, was present and viewed the premises, and did not sign because he did not agree with the others in estimating the value of the premises. To transfer the title, there must appear of record to have been a substantial compliance with the requirements of the statute; and if it does not so appear, the defect cannot be supplied by parol proof. Where by the return of the officer it did not appear, that the appraisers were discreet and disinterested men, that defect could not be supplied by parol testimony, as decided in Williams v. Amory, 14 Mass. R. 20. The validity of the levy must depend upon its sufficiency without such proof. The officer’s return, speaking of all three of the appraisers, says, “ who afterwards viewed the above described lands and tenements.” The argument is, that this language does not prove, that all the appraisers acted, because the officer, at the close of his return, says, “ all which appears by his receipt and tire writing aboveand thereby refers to the preceding certificates for the facts ; and by such certificates it does not appear, that all acted. But the officer does state in his return other material facts not noticed in such certificates. Such as the facts by whom the appraisers were selected, that they were freeholders, and that they were “ indifferent discreet persons,” as it is expressed.

It does not appear, from an examination of the whole return, that the officer intended to state facts not appearing, except by his own return ; and the particular statement therein made of material facts, cannot be impaired by the general language used at the close of it.

There being evidence that all the appraisers acted and viewed; the levy cannot be regarded as void because one omitted or refused to sign. Barrett v. Porter, 14 Mass. R. 143; Moffitt v. Jaquins, 2 Pick. 331.

It is objected, that the levy is defective, because the appraisers were not sworn to satisfy the execution and “ all fees and charges.” But it has been decided, that the levy is not for that cause void. Sturdivant v. Sweetser & al. 3 Fairf. 520. The officer’s return and the proceedings being sufficient to convey the title by statute, there must be judgment on the verdict.