Boynton v. Grant , 52 Me. 220 ( 1863 )

The opinion of the Court was drawn by

Barrows, J.

Several objections are made to the validity of the levy under which the demandant claims.

It may well be held that Joseph Irish, who subscribes the certificate of the appraisers, is sufficiently identified as the same Irish who is mentioned in the certificate of the oath, and in the officer’s return.

The officer’s return refers to that of the appraisers, thus subscribed, (in which the administration of the oath is also set forth,) and it speaks of "the said appraisers” as having viewed the premises and set out the land. This objection must fail. Rollins v. Rich, 27 Maine, 557.

Another objection is, that the return of the appraisers does not state the nature of the estate taken, whether a fee simple or a less estate, according to the requirements of c. 76, § 3. But it does state that they viewed " a certain tract of land” showed to them as the estate of Joseph H. Yigoreux ; that they appraised said land and set it out by metes and bounds.

In the absence of any words of limitation, this may, perhaps, be fairly understood as being an estate in fee simple, held in severalty by Yigoreux.

And, if these were the only objections, the demandant might be held entitled to recover.

Two objections of a more formidable character remain to be considered. The judgment against Yigoreux & ad., in satisfaction of which the levy was made, was rendered Api’il 30, 1859. The only return of the levy which was recorded bears date June 6, 1859, and sets forth that the debtor failing to satisfy the execution, and the creditor finding no personal property and thinking proper to levy the same on real estate, he that day caused certain persons to be sworn as appraisers, &c.

The tenant claims under a deed made, acknowledged and recorded, Nov. 8, 1857, the title coming through several mesne conveyances from Joseph IT. Yigoreux, who conveyed by deed, duly acknowledged and recorded, March 8, 1853. The tenant appears to be a bona fide purchaser for value, and the deeds of warranty, all regularly made and recorded before the levy, will give him the title, unless the levy is connected with the attachment of the premises, on the original writ against Vigoreux & al., dated Eeb. 11, 1851. So far as the record of the levy shows, the land was not taken in execution until more than thirty days had elapsed after the rendition of judgment. The plaintiff relies upon an unrecorded memorandum, made by the officer, of a seizure óf the premises on May 28, 1859, and contends that the statute does not require the seizure to be recorded, and that it is no part of the levy. This position cannot be sustained, for it is one of the statute requisites of a levy that the officer shall state, in his return on the execution, the time when the land was taken in execution. R. S., c. 76, § 5.

According to the record, it seems to have been done June 6, when the appraisers were chosen and sworn.

Which shall govern, the record, or the unrecorded memorandum of May 28th ?

In Lumbert v. Hill, 41 Maine, 482, the Court say, — "If the judgment creditor, by mistake, do not make his title to the land seized on the execution perfect by the levy, surely there can be no reason why a subsequent attaching creditor or purchaser should be prejudiced by such mistake, for the record is the statute evidence of what was done in extending the execution.” And again, in the same case, — "A statute title must always be perfect, that is, everything made necessary by the statute, to pass the property, must appear by the return of the officer, and, when recorded, it must of course appear by the record to have been done. And, when the execution and levy thereof have been returned and recorded, as was done in this case, there can be no other notice of the previous proceedings than the record, by which subsequent attaching creditors or purchasers can be affected.”

In Stevens v. Bachelder, 28 Maine, 218, it was ruled by Siiepley, J., "as matter of law,” that a levy was void and •without auy legal effect in the ease, because " the officer’s name did not appear of record in the book of records, produced and exhibited by the Registerand this ruling was sustained, though the original return upon the execution, bearing the name of the officer by vfjiom the levy was made, and which purported to have been placed there at the date of the levy,” was in the case. It is true, that the facts upon which that case was decided arose prior to the enactment of the statute provision, that every deed shall be considered as recorded at the time when it is received. But the design of that statute undoubtedly was to make the register’s certificate of the time-of the reception evidence of the time of the record, while the deed remained in the office unrecorded, and not to make such a certificate conclusive evidence of notice to third parties of the contents of the deed, in direct contradiction to the record itself. As to this, the true rule seems to be the one laid down in Hastings v. Blue Hill Turnpike Corporation, 9 Pick., 80, where the Court held that, by all the rules of evidence, the record must be conclusive; that the certificate of record was only prima facie evidence, and that to determine otherwise would be to defeat one of the principal objects of the record, for the certificate would be no notice to subsequent purchasers.

This view gives their full and legitimate effect to § § 15 and 16, c. 76, R. S., which provide that "the officer is, within three months after completing the levy, to cause the execution, with the return thereon, to be recorded in the registry of deeds where the land lies,” and that, "when not so recorded, the levy will be void against a person who has purchased for a valuable consideration, or has attached or taken on execution the same premises without actual notice thereof.”

The remaining objection to the levy seems, according to the doctrine of Harriman v. Cummings, 45 Maine, 351, to be equally fatal. There were two debtors in the execution, and it does not appear with certainty that the debtor whose land was taken was notified to choose an appraiser, and neglected to do so; the return simply reciting parenthetically, in the statement of the manner in which the appraisers were chosen, as follows, "the debtor neglecting to select one.” It is insisted by the plaintiff’s counsel in argument, that the return is false, unless Vigoreux was the party notified, because the other debtor had no right to choose an appraiser, and could not "neglect.”

It is not easy to see why the same style of argument would not apply equally well in Harriman v. Cummings. The other debtor had no right to "choose,” and when it is returned that an appraiser was chosen by the debtor, it might, perhaps, be fairly argued or inferred, that the choice was made by the one who could rightfully do it, and that unless so made the officer’s return is false. But there should be nothing left to argument or inference in such a case. The creditor should make it certain that the proper course was pursued, and, not having done so, the levy must be held defective for this reason also.

According to the stipulations of the parties in the report, there must be. , Judgment for the tenant.

Appleton, C. J., Cutting, Davis and Walton, JJ. concurred.