Blake v. Rogers

210 Mass. 588 | Mass. | 1912

Braley, J.

The execution with the amended return making it conformable to the truth was admissible to prove the recitals in the sheriff’s deed under which the demandant claimed title to the premises. Childs v. Barrows, 9 Met. 413. Sawyer v. Harmon, 136 Mass. 414. Hunneman v. Phelps, 207 Mass. 439. But unless it appeared therefrom, that in making the levy and sale, the requirements of the statute had been followed, the judgment debtors had not been divested of their estate. Rand v. Cutler, 155 Mass. 451, 453. By R. L. c. 178, § 28, a notice of the time and place of sale must be posted in the city or town where the land lies, and in two adjoining cities or towns if there are so many in the county, and, the debtors having been described in the execution as residing in another county, it was also necessary under § 44 to send by mail, postpaid and addressed to each of them at their residence as described in the execution, a written or printed notice of the sale. R. L. c. 8, § 5, cl. 25. It is the purpose of the statute, that the debtor shall be notified in order that he may fully protect his interests at the auction, or prevent the sale by payment of the judgment with accrued costs.

The proceedings indeed must conform to the statute, but no set form of words is prescribed by which compliance must be manifested. The errors relied on by the tenant as to the posting of the notice and service upon the defendants go rather to the form of expression used by the levying officer than to the substance of the statute, and the verbal departures in the return from the literal wording of the statute do not affect the truth of the recitals of what had been done, and in these particulars the statements show with sufficient certainty, that he acted in conformity with it. Owen v. Neveau, 128 Mass. 427. Sawyer v. Harmon, 136 Mass. 414, 415. Holmes v. Jordan, 163 Mass. 147, 148, 149.

“ The officer shall also cause a notice of the time and place of sale to be published three weeks successively before the sale in a newspaper, if any, published in the county in which the land lies.” R. L. c. 178, § 28. If the use of the word “ advertisement ” in the return, instead of “ notice,” when referring to the act of publication was not a fatal variance for reasons already given, the tenant urges, that because the return further states, that the sale was published in a newspaper “ printed ” in the county, the statute was violated and the levy was fatally defective. The time and place of sale are to be made known and advertised to the community for the purpose of attracting purchasers and to prevent secret and collusive transfers to the injury of the debtor or of other attaching creditors or of incumbrancers. A newspaper which merely circulates within the county, although it might be an effectual medium of publicity, is not within the statute, if there be a newspaper “ published in the county in which the land lies. ” The Legislature has not defined the sense in which the word is here used, but it is to be construed according to the common and approved usage of the language. R. L. c. 8, § 4, cl. 3. Obviously it refers to its local habitation and the notice must be inserted in a newspaper printed and issued within the county. In ordinary signification the phrase “published and printed” when used in connection with books, magazines and newspapers bearing the imprint of a town or city denotes the place where the press work is done and the publication is issued. Bayer v. Hoboken, 15 Vroom, 131; S. C. 16 Vroom, 185. State v. Bass, 97 Maine, 484. It is thus defined in R. L. c. 13, § 1, now St. 1909, c. 490, Part II, § 1, requiring collectors of taxes to give notice of the time and place of sale of land for payment of taxes by publication. “ Publication . . . shall mean the act of printing ... in a newspaper published in the city or town, if any, otherwise in the county, where the land or other property ... is situated.” Connors v. Lowell, 209 Mass. 111, 119. Our previous statutes relating to the seizure and sale of lands on execution when examined confirm this interpretation. The original act of 1798, c. 77, §§ 3, 4, providing for the attachment and sale of an equity of redemption which was re-enacted without material change in phraseology in Rev. Sts. c. 73, § 39, Gen. Sts. c. 103, § 41, and the Pub. Sts. c. 172, § 29, required, that “an advertisement of the time and place of sale, to be published ... in some public newspaper, printed in the county in which such real estate lies, if any such newspaper shall be there printed.” The R. L. c. 178, § 28, with the exception that “ published ” is substituted for “ printed,” made no change, and if susceptible of more than one construction it should be construed with the preceding statutes of which it is not a repeal, but a re-enactment. R L. c. 226, § 2. Bent v. Hubbardston, 138 Mass. 99, 100. Franks v. Edinberg, 185 Mass. 49, 53.

The return leaves nothing to be inferred as to the steps taken. It specifically and aptly recites, that in the mode prescribed the time and place of sale were published in a newspaper printed in the county, and on the face of the record no error is disclosed.

The essential elements of a valid sale having been put in evidence, the judge properly declined to give the tenant’s request, that the truth of the recitals in the sheriff’s deed had not been shown. Welsh v. Joy, 13 Pick. 477.

The jury also were correctly instructed, that the evidence, if believed, warranted an affirmative answer to the second issue which raised the only questions presented by the exceptions. It is settled, that extrinsic evidence was not admissible to contradict or control the return on the execution. Sykes v. Keating, 118 Mass. 517, 520. And the decision of the associate judge of the Land Court moreover having contained no findings of fact, but only a ruling of law, it had no evidentiary value under St. 1905, c. 288. DePonta v. Driscoll, 200 Mass. 225, 226.

Exceptions overruled.