44 Mass. 251 | Mass. | 1841
This is a real action, and the question is, which parly has the better title. The demandant claims as assignee of William Marstins, an insolvent debtor, and the tenant, by levy of execution on the premises, as the real estate of the same William Marstins. The question is, which title first vested ; and for the reasons stated in the next preceding case of Hall v. Crocker, we are of opinion, that the demandant’s title was complete before the transfer under the proceedings in insolvency took effect.
As to the criticism on the terms of the officer’s return, we are of opinion that the construction is not to depend upon the punctuation, and that, independently of the punctuation, it is sufficiently intelligible. Tt is no objection to the regularity of the return, that"it bears date as of the time when the service was begun, though the other facts, certified in the return, took place at subsequent times.
In addition to the citations in the foregoing case of Hall v. Crocker, showing that the levy takes effect from the time of the seizure of the estate, may be added Rev. Sts. c. 97, § 15, providing, that “ if either party shall die, after any real estate or any goods or chattels have been seized on execution, the service thereof may be completed, in like manner and with the same effect as if both parties were still living, and the officer may ap
It was argued that the debtor, in such a case as the present, could not appoint an appraiser. Why could he not ? He has an interest, notwithstanding his insolvency, in seeing that no larger amount of his estate is set off, than is sufficient to pay his debt. But if he could not legally appoint an appraiser, then the exigence exists, in which the officer is to appoint one for him.
That taking or seizing is not to be used literally, as entering upon or taking possession of land, is manifest from the various provisions authorizing the officer to take estates in reversion or remainder, lands fraudulently conveyed, rights of entry, and rights of redemption; in none of which cases could an entry be lawfully made. A right can only be taken constructively, and by operation of law.
It was made an exception to the regularity of this levy, that it appeared, by the certificate of the magistrate, that one of the appraisers affirmed, without taking an oath in due form, and without a certificate that he was conscientiously scrupulous of taking an oath. Rev. Sts. c. 94, § 10.
The statute vests the authority in the court or magistrate before whom an oath is to be taken, to determine, on inquiry, whether he is satisfied of the truth of the declaration of the party, that he has conscientious scruples against taking the oath, and, on the result of that inquiry, to permit him to affirm, in the manner prescribed for Quakers. The certificate of the magistrate, that the appraiser took the affirmation, causes a necessary implication, that he was permitted to do so by the magistrate ; and if he was satisfied of the declaration, it is conclusive on all other courts and tribunals.
Demandant nonsuit