9 Mass. 96 | Mass. | 1812
delivered the opinion of the Court.
The title of the demandant is the extent of an execution upon a judgment he had recovered against one William Creed. The extent and return are dated February 3, 1784.
One objection to the effect of this execution is, that the creditor was not represented by an attorney authorized by deed; — or, at least, that there is no evidence now to be produced, of the authority given by the judgment creditor to Enoch Perley, to receive seisin of the lands levied upon; and evidence of seisin is supposed, in this objection, to depend on Perley1 s receipt annexed to the officer’s return. And I presume it was only against the effect of the execution, that an inquiry was gone into at the trial, as to the conduct of the appraisers, in viewing only one lot of several lots appraised,
But to these objections, from whomsoever received, as applicable to the effect of the execution, the sheriff’s * return is a conclusive answer. If he returns an appraisement, and a seisin delivered to the lawful attorney of the judgment creditor, those facts are proved by the return, and every person is concluded by it, in any question of the effect of this execution.
The subsequent conveyance by Perley is alike insufficient .of itself, and for the same reasons, when offered as a proof of a disseisin. There is no evidence of an entry by Perley, other than the constructive entry by his receipt for the seisin of Creed’s lands. If a seisin was gained to Perley’s grantee under that deed, by his taking an actual possession under it, whether by right or wrong, it affords * no proof of this demandant’s seisin ; nor is it perceivable by what relation Perley’s act in that conveyance is to operate as Bolt’s, and to give a seisin to him.
Upon.the whole, the demandant’s title, as derived under the
Upon the evidence as reported, the demandant is not entitled to recover in this action ; and according to the agreement of the parties in reserving the case, the verdict is to be set aside, and a new trial is to be granted; and that is the order to be now entered,
Com. Dig. Retorn. G.
Com. Dig. Seisin, F. 1, 2, 3, 4.
[Vide S. C. (11 Mass. Rep. 163,) on new trial.—Ed.]