Hall v. Hall

5 Vt. 304 | Vt. | 1831

The opinion of the Court was pronounced by

Paddock, J.

The Court coincide with the counsel in opinion, that,..upon its appearing that the defendant’s title is derived from the plaintiff, by levy of her execution upon the lands in question, her objection to the introduction of the deed from Seymour, fails altogether; for if the Statute of 1807 were not in existence, and any thing pased to the plaintiff by the deed, it would certainly inure to her benefit, if she held by conveyance from plaintiff, by deed of warrantee; because, if the title were not good the grantor would be held upon his covenants, as waa decided in Middlebury College vs. Cheney, and the same principle will apply in this case; because, if the lands levied upon prove not to be the estate of the debtor, the creditor by our Statute Law, p. 213, may revive his judgement and take an alias execution against such debtor. And the existence of the Statute cannot vary the case ; for in no point of view can we consider that the defendant holding under the levy, was in, adverse to the titl e of the plaintiff. The defendant is possessed of no title but that derived from the plantiff by virtue of the levy, it is that title which she is now defending. If successfully, it is, because she has made his title her own by the levy. But, if the levy be void., then the title which she holds possession under, must be adjudged the plaintiff’s. It has never been doubted but that a defendant in ejectment, holding by virtue of the levy of an execution, might attach the possession of the execution debt- or to his own to make out a fifteen years possession, if the plaintiff claimed by adverse title. This question being disposed of, we come to the levy.

To acquire a title to real estate by the levy of an execution, the creditor must have obtained a legal judgement; a legal execution, must be put it into the hands of an officer who can legally levy it upon the estate, causing the land legally to be surveyed and appraised ; but notwithstanding all this being done within the life of the execution, yet the creditor has acquired no title to the property, because the officer has made no return of his doings; but two days after, in this case, the officer made his return upon the execution, and whether he caused the proceedings to be recorded we are not told. The Court consider it absolutely necessary that some period should be definitely fixed, in which the doings of the officer shall be complete and the rights of the parties fixed.

If the direction in the execution is to govern, then, all done by the officer after the return day, is void; if two days after the return day has expired, it will be legal for the officer to make and date his return, then, why not two months or two years after? At what period will the six months redemption commence ? on the 12th of April when the appraisal was made, or on the 5th .of May when the Officer signed and sealed his return ? I am not aware "that question has ever been directly brought before the Court to determine between the execution creditor and debtor, which of the two acts passes the titlej whether it ke the completion of the return by the officer on the execution, or the recording in the proper office and filing in the one from which it issued. In the case of McLellen vs. Whitney, the facts vary materially from the present: it does not appear but that the return on the execution was perfected by the officer before the return day thereof, and further, the officer delivered seisin and possession of the estate to the creditor who quietly enjoyed the same for many years, and then, without being molested, brought an action of debt on his judgement; but the Court considered that the plea in bar ought to prevail, inasmuch as McLellen took possession of the lands from the hands of the officer, perfected the recording afterwards, though not within the three months, and having continued the possession, Whitney acquiescing therein, he should not at that late day, disannul the proceeding. Judge Parker says the record is not made for the benefit of the execution debtor, but community at large. In Ladd vs. Blunt, 2 Mass. 402, Judge Parsons says, “the lands remain the debtor’s unless the creditor has a good title to them by matter of record.” We are of opinion that there can be but little doubt if any, that where the officer does not make and subscribe his return until after the return day of the writ, that the-whole proceedings are void; and

Phelps & Bell, for plaintiff. Slade & Seymour, for defendant.

The judgement of the County Court is affirmed.