Haskell v. Varina

111 Mass. 84 | Mass. | 1872

Gray, J.

The burden of proving a compliance with the statutes in all respects necessary to make a title under the levy is upon the party claiming under it. The real estate in question having been seized on the demandant’s execution, and the further service of that execution having been then suspended by reason of a prior attachment, the estate remained bound by the seizure on execution until the attachment was dissolved and for thirty days thereafter, and the service of the execution might be completed in like manner as if the estate had been first seized thereon at any time within said thirty days. Gen. Sts. a. 133, §§ 50, 51. The demandant contends, and for the purposes of this case we may assume, that by virtue of this last provision the levy of the execution might be proceeded with in the same manner and within the same time as if the original seizure had been made on the last moment of the thirtieth day after the dissolution of the prior attachment. “ The officer, after taking land on execution, shall give notice thereof to the debtor, if found within his precinct, allow him a reasonable time to appoint an appraiser, and then proceed without unnecessary delay to have the estate appraised and complete the levy thereon; ” and the levy takes effect as of the date of the seizure, if the appraisement and the completion of the levy are pursued with reasonable diligence. Gen. Sts. c. 103, § 24. Heywood v. Hildreth, 9 Mass. 393.

What is reasonable diligence in this respect, like any other question of reasonable time, is, when the facts upen which it depends are undisputed and unequivocal, a question of law, and should be determined, as far as may be, by uniform rules. Bassett v. Brown, 105 Mass. 551, 557. Spoor v. Spooner, 12 Met. 281, 284. Bank of Columbia v. Lawrence, 1 Pet. 578, 583. Howe v. Huntington, 15 Maine, 350. In view of the statutes and decisions upon the subject, and in the absence of all qualifying or explanatory circumstances, we are of opinion that an omission of the creditor or officer to proceed with the levy of an execution, for more than thirty days, at any stage between the recovery of judgment and the completion of the levy, is an unreasonable delay. An attachment is dissolved, if the levy of the execution upon the property attached is not commenced within thirty days after judgment. Gen. Sts. c. 123, § 42. If a levy has been begun, and suspended by reason of a prior attachment, the estate, or such part as remains undisposed of, continues bound for thirty days after the attachment has been dissolved, or part of the property applied on execution to satisfy it. Gen. Sts. c. 133, §§ 50, 51. In Waterhouse v. Waite, 11 Mass. 207, it was held that the neglect of the judgment creditor for thirty days after the seizure and appraisal to receive seisin of the land from the officer was an unreasonable delay, and such loches on his part as defeated the levy. And in Inman v. Mead, 97 Mass. 310, where the officer’s return showed that the appraisers were sworn on the twenty-ninth day after the seizure, it was held that the omission of the return to show any reason for such delay did not defeat the levy.

In the case at bar, the officer’s return, which is the only evidence upon the subject, does not show that anything was done towards mating the appraisement or completing the levy for forty days after the dissolution of the prior attachment; for that attachment was dissolved on January 31, and the appraisers’ certificate bears date of April 12, and there is nothing to show that the appraisers were appointed, or notice given to the debtor to appoint one, until the day last named. The result is that the demandant’s levy is avoided as against the conveyance meanwhile made by the debtor to the tenant. •

Judgment on the ver diet for the tenant.