Drake v. Mooney

| Vt. | Feb 15, 1859

Aldis, J.

The plaintiff made title to the personal property

seized through an officer’s return.

I. The plaintiff offered to show by parol, a sheriff’s sale made in a different manner from what appeared on the execution. The evidence so offered was rejected by the court.

It is said by the defendant’s counsel that this offer was too vague, and therefore properly excluded. If it was excluded on that ground the plaintiff’s counsel should have been so informed, that he might amend his offer by stating the facts to be proved with more precision; and its exclusion for that reason would, we think, have appeared on the bill of exceptions.

We think the fair construction of the exceptions is this : that no matter what may be the facts offered to be shown by parol, they should be excluded because no parol evidence was admissible to show a sale differing from the one stated in the return. Whatever may be the effect of the return as between the parties to the execution, we are clear it is not the sole and conclusive evidence of the facts stated in it as between the execution creditor and a third person ; in this case an attaching creditor, of the execution debtor. The contrary doctrine seems to be the rule of the common law in England, but in the American States generally, and in this State, the return is held to be only prima facie evidence. The evidence offered we think was clearly admissible.

II. The court held that the return, on its face, was insufficient to pass a title to the property sold.

In the construction of officers’ returns we are not to presume any facts to invalidate them, but are to give them a reasonable meaning; ’and where the facts stated are as consistent with regularity as irregularity, we should hold them regular. The .presumption of law is in favor of the legality of the return.

1. It is objected that the return does not say that he set up an advertisement at some public place ; the words of the return are “I advertised the property as the law directs,” and then proceeds to state the places where the property was to be sold, and was sold. In Beattie v. Robin, 2 Vt. 181" court="Vt." date_filed="1829-03-15" href="https://app.midpage.ai/document/beattie-v-robin-6571128?utm_source=webapp" opinion_id="6571128">2 Vt. 181, the return stated that the property was advertised on the town post, but wholly omitted the place where it was to be sold, or was sold. The return was held good.

As the place of advertisement and sale are by the statute required to be the same, it would seem that when the place is mentioned in connection with the advertisement or sale, that we ought to presume in favor of the regularity of the proceedings that the place omitted is the same as the place expressed. In this case we should intend that it was advertised where sold.

2. Neither are we to presume without proof that “Griswold’s house,” “ Langdon’s,” and “the furnace” are not public places.

3. Nor is it an objection that the property was sold at three different places. "Where the character and situation of the property and the interests of the parties require, the officer may in his sound discretion, and in good faith, advertise and sell at different places. We think the return on its face good to pass the title.

■III A question was raised *by the plaintiff’s counsel that the ■ title of the purchaser at sheriff’s sale, who buys in good faith, ■and upon proceedings apparently in inviium under the execution, can not be affected of impaired by the irregularities of the officer in doing his duty, or by defects in the return. On this point we-express no opinion.

The judgment of the county court is reversed.