34 Me. 463 | Me. | 1852
The decision of this case must depend upon the answer to the question, whether the levy of the, execution in favor of Simeon Pease against Robert .McDonald and Oliver M. Pike can be sustained. Its validity is objected to on several grounds ; First, that there is not sufficient evidence, that the. appraisers were sworn ; 2, that it does not appear in the return, that the officer took the land in execution, or that he notified the debtors thereof, and allowed them a reasonable specified time, within which to choose an appraiser. 3. It is not stated, that the appraisers proceeded with the officer, and viewed and examined the land, and that the land was set off by the appraisers. 4. It does not appear that the appraisers were of the eounty, where the land lay. 5. Because the return omits to state, by whom one of the appraisers was appointed.
1. The officer shall state in his return, substantially among other things, that the appraisers were duly sworn; the time, when the land was taken in execution ; how the appraisers were appointed ,• and that they appraised and set off the premises after viewing the same at the priee specified. R. S. c. 94, 4 24.
The officer certifies, that the 'oath was taken by the appraisers before him. It was in proper form, and he was authorized to administer it. Statutes of 1843, e. 13. It is stated in the return, that the appraisers, who were before named, having upon oath appraised the land, at the sum mentioned, as above appears. The certificate of the caption of the oath and the appraisers’ return precede the officer’s return
2. No particular ceremony is required by an officer in seizing real estate on execution, and it is not made essential that he shall enter upon it during any stage of the proceedings. Bond v. Bond. 2 Pick. 382; Hammatt v. Barrett, 2 Pick. 564. When he is notified by the creditor to levy the execution upon real estate, and he informs the debtor of his purpose, and requests him to appoint an appraiser, he may be considered as having seized the land in execution. The statute of Massachusetts, c. 73, § 22, is similar in this respect to the provision of the statute of this State, c. 94, $ 5; and in Hall v. Crocker, 3 Metc. 245, the Court say, “ It has been decided many years since, that an entry is not necessary. It is sufficient for the officer and appraisers to view the land, and that is necessary, only for the purpose of making a just estimation of its value.” “It appears to us very clear, that the' act of the officer in giving the notice to the debtor to choose an appraiser must be deemed a good beginning of the service of the execution.” “ The statute having fixed upon no specific act, which will constitute a seizure of land on execution, the Court are of opinion, that when an execution has been delivered to an officer, with direction to levy the same upon real estate of the debtor, and the officer accepts the execution rvith such directions, and consents and undertakes to execute it, any act done by him in pursuance of that purpose is a beginning to execute, and constitutes a seizure.”
The proceedings by the officer, shown by the return, were commenced on April 18, 1845, and completed the same day. A notice of some kind to the debtors to choose an appraiser, is necessarily implied, and the time when the land was taken in execution is substantially stated in the return.
It was held by the Court in Massachusetts, before the revision of their statutes in 1836, that though the statute did not in terms, require the officer to give the debtor notice to appoint an appraiser, yet that it was manifestly implied by the provision, that the debtor had the power to choose one of the
The statute of this State having required, that the officer shall give notice to the debtor, and allow him a reasonable specified time, within which to appoint an appraiser, has in terms provided for those acts substantially, which in Massachusetts were deemed necessary, upon a proper construction of a more general requirement in the former statute of that Commonwealth. And that which would dispense with a particular return of the notice given to the debtor to appoint an appraiser in one case, would be sufficient in the other. What time may be given to the debtor for that purpose, is submitted to the judgment of the officer. It is not necessary that he should state in the return, the time allowed, but that the time, which he may deem reasonable to give, shall be specified in the notice, so that the debtor may know when it will expire. In this case the officer does not state, that he gave a “ reasonable specified time,” but that the debtors refused to appoint, which is a sufficient substitute, implying, that they made no objection to the time given, but, that they should not avail themselves under the circumstances, of their legal privilege.
3. The appraisers state in their return, that on April 18, 1845, they had viewed a tract of land, which is described, shown to them, by the attorney of the creditor, as the estate of the debtors, which they appraised upon their oaths, and set off the same by metes and bounds to the creditor within
4. The appraisers must be discreet and disinterested men. R. S. c. 94, § 5. No other qualification is demanded in terms by the statute. In the case of Nickerson v. Whittier, 20 Maine, 223, the question arose under the statute of 1821, c. 60, § 27, by which the appraisers were required to be freeholders in the county. Under the present law, this case is not an authority in point. It is contended in argument, that the appraisers must belong to the county, because he has no power to go beyond its limits to make the choice. The officer cannot compel the service of one, who resides in the county as an appraiser; but if he procures those, who are competent, whether of the county or not, the requirement of the statute is answered.
5. The return omits to state, by whom one of the appraisers was appointed. This is certainly not a compliance with the statute requisition, and is fatal to the validity of the levy, unless the defect can be supplied. There is nothing from which it can be necessarily inferred, that the' appointment was made hy one having authority to do it.
Can the officer be allowed to amend his return by supplying the omission, according to the fact, the person, who made the return not now holding the office, in which he acted at the time of the levy ? To make a valid levy, it is not required that the person, who acts as a sheriff, deputy sheriff or other officer, should continue in office, till the proceedings are complete, if they were commenced by him, when he had official power for the purpose. R. S. c. 94, § 5. It follows, if a return may be made entirely, after his removal,
In this case, it appears by the certificate of the oath, that three persons were sworn to make the appraisal, and by their own return, that they were duly chosen and sworn, and that the land was shown to them by the creditor’s attorney. In the officer’s return, it is stated, that he has caused the persons named faithfully and impartially to appraise, &c. “ James O. Mclntire, chosen by-, Augustus Johnson, chosen by myself, and the said William Fitch, jr., chosen by me, for the debtors,, they refusing to choose.” The execution and the proceedings touching the attempted levy were by legal requirement made matter of record, and all interested in the land were constructively notified thereof. The blank in the return, immediately after the name of Mclntire, and the unfinished seutence render it perfectly clear, that the officer did not profess to have made perfect his return, but to have omitted something which was designed to be supplied. The officer had exhausted his power of appointment in choosing one appraiser ex officio, and the other in consequence of the refusal of the debtors to make an appointment on their part. The direction was given to him in behalf of the creditor to make the levy. His attorney was present and gave direction touching the land to be appraised, and received seizin and possession of the same for him. It is not to be presumed, that the appointment of Mclntire was made by one not authorized, and it is not improbable that the appointment was made by the creditor’s attorney, and his name not being upon the execution as was the creditors, it was omitted in the return, till the officer could ascertain what it was. We think there is sufficient to show, that all the requirements of the law had probably been complied with, and the debtor should stand chargeable with all, the existence of which is indicated, by what is stated in the record, and can be satisfactorily shown to the Court. Fairfield v. Paine, 23 Maine, 498. We think
The Court are informed by the affidavits of the officer and the creditor’s attorney, what the amendment will be, and if made accordingly, the levy may be considered sufficient to transfer the land to the creditor.
