Wilson v. Bucknam , 71 Me. 545 ( 1880 )

Appleton, C. J.

Tbis is a real action in wbicb tbe plaintiff claims title by deed as a purchaser of a certain equity of redemption of George A. Bucknam sold on execution against him.

Tbe officer in his return states that on tbe 16th of November, 1875, be "gave to tbe said George A. Bucknam in band a notice in writing that the said right in equity would be sold by public auction, on tbe 8th day of January, A. D., Í876, at one o’clock in afternoon, at tbe post office, in Machias, in said county, and on tbe same day I also posted a like notice, in tbe town of Addison, on tbe school bouse, a public place in said town, and on tbe same day also a like notice in tbe town of Columbia on tbe school bouse in said Columbia, said town of Addison and town of Columbia being adjoining towns of Columbia Falls, in wbicb said land lies; and on the same day I posted up a like notice at tbe post office, a public place in tbe town of Columbia Falls, where tbe land lies. Also I caused a like notice to be published three weeks before tbe said time of tbe sale aforesaid in the Machias Republican, a newspaper, printed in Machias, in said county; and on tbe 8th day of January, A. D., 1876,1 adjourned said sale to the 14th day of said January, to tbe samé time and place, and on tbe 14th, at one o’clock in the afternoon, I sold at public auction at the post office in Machias, all the right in equity wbicb George A. Bucknam bad,” &c., &c.

By R. S., c. 76, provision is made for tbe notice of tbe time and place of sale of an equity of redemption.

Notice having been given, it is provided by § 34, that "when; the officer deems it for the interest of all concerned to postpone' the sale, he may adjourn it for any time not exceeding seven; days, and so on from time to time until a sale is made, giving-notice at the time of each adjournment by public proclamation,”' &c.

The plaintiff to bring himself within the statute must show a. compliance with its provisions. Smith v. Dow, 51 Maine, 27; Russell v. Dyer, 40 N. H. 173; Davis v. Maynard, 9 Mass. 242. There should be nothing left to inference. It is for the-party claiming under a statute title to establish its validity.

The return does not show that the officer deemed it "for the' interest of all concerned to postpone the sale.” This should, appear, for if not for their interest the sale should have been made at the time and place appointed. No sufficient cause is. shown for the adjournment. Sanborn v. Chamberlin, 101 Mass. 409.

The debtor was notified that the sale vmuld take place on; January 8th, 1876. No notice appears to have been given of the time to which the sale was adjourned, by public proclamation as-íle statute directs. The sale took place at a time of which, for-want of such public proclamation, parties interested had no-notice. This omission is fatal. Hayes v. Buzzell, 60 Maine, 205.

The point is made that a "school house” is not a public place.. The officer in his return states it to be a public place, which is-sufficient. A shoe maker’s shop was held to be a public place in: Tidd v. Smith, 3 N. H. 179. So a school house, mill and mechanic’s shop may be properly regarded as public places, as was held in Russell v. Dyer, 40 N. H. 173.

The validity of the sheriff’s deed depends upon the officer’s-return, which must show a full compliance with the requirements-of the statute. Pratt v. Skolfield, 45 Maine, 386; Wellington v. Cale, 13 Mass. 483; Davis v. Maynard, 9 Mass. 242. "A statute title must always be perfect, that is, every thing which-the law deems essential to transfer the possession from one to another must appear of record to have been done,” observes. Parker, C. J., in Williams v. Amory, 14 Mass. 20. The return being fatally defective, the deed becomes ineffectual to pass a title.

It is settled in Welsh v. Joy, 13 Pick. 477, that a misrecital in a deed of an equity may be aided by the return on the execution.

There is a motion to amend the officer’s return by supplying its omissions, such amendment being in accordance with the truth. The amendment may be made accordingly, upon proof of the necessary facts, saving the rights of all persons acquired in good faith before the allowance. Glidden v. Philbrick, 56 Maine, 222; Whittier v. Varney, 10 N. H. 291.

The motion to amend was made after the case was reported. It has been argued by both sides. Its allowance necessitates a ■ change in the terms of the report as first made and requires that a trial should be had to determine the validity and good faith of ■the defendant’s title.

Amendment allowed.

Case to stand for trial.

Walton, Danforth, Virgin, Peters and Libbey, JJ., «concurred.