17 Vt. 121 | Vt. | 1843
the opinion of the court was delivered by
The plaintiff claims title under what is called Kidder’s vendue. At the last term of this court, in this county,
It is a common case, in practice, to show by parol that a deed, filed for record, was not intended to be recorded until farther directions should be given; — and this too by the town clerk himself. See Myers v. Brownell, 2 Aik. 407. So, between other parties, all officer’s return may be contradicted by parol evidence. Though the service may be held conclusive between the parties to the suit and their privies, yet I am not aware of any case giving it a conclusive effect against strangers. Judge Cowen, in his notes to Philip’s Evidence, 1091, says, on the general principle that an officer cannot impeach his return in an action against himself, it has been said, he is not a competent witness for such a purpose, in other cases. The case of Meredith v. Shewall, 1 Penn. R. 496, is cited for the doctrine. How far that case sustains such a position, I am unable to say; but, from the manner of Judge Cowen’s citing it, I should .infer it was but the obiter opinion of a single judge. No authority, save that one, is cited by Judge Cowen; and he does not speak of such a doctrine as a settled principle, but is satisfied with saying, “ it has been so said.” No case has been cited at the bar, and I think such a principle would be an innovation upon the rules of evidence.
The next question is, what should be the effect of the parol
There has not, then, been a compliance with the statute, in this respect. It is not denied, as I understand, that, if the requisitions of the statute have not been complied with, the effect must be to render a title under the vendue unavailing.
The courts have been, generally, somewhat astute in requiring a strict compliance with the statutes relative to the sales of lands, for
The result is, the judgment of the county court must be affirmed.
Not reported.