27 Me. 449 | Me. | 1847
The opinion of the Court was drawn up by
The suit is upon a covenant of warranty in a deed from the defendant to the plaintiff, made on Sept. 20, 1839, conveying a lot of land situated on the corner made by Penobscot and Pine streets, in the city of Bangor. The lot was conveyed by Harvey Reed to Nathaniel French on Dec. 9, 1836. French conveyed the same on May 25, 1837, to John S. Ayer, from whom the defendant derived his title.
Charles Buck and Camillus Kidder, commenced a suit against Nathaniel French, Joseph Richards and Henry Burgess, on Dec. 28, 1836; and on that day a deputy of the sheriff made a return upon the writ in the following words: —“ Penob-scot, Dec. 28, 1836, at eleven o’clock A. M. I have attached all the right, title and interest the defendant has in and to any real estate in the county of Penobscot.” The plaintiffs in that suit subsequently obtained judgment and caused an execution issued thereon to be levied upon that lot of land as the estate of Nathaniel French.
If the return of the officer, made upon that writ, operated as an effectual attachment of that lot of land, the plaintiff may be entitled to recover. If it did not, there is no proof, that the covenants of the defendant have been broken.
Courts will give effect to the returns made by officers, although informally made, when the intention is sufficiently dis
The plaintiff contends, that the several persons named as defendants in that writ constituted the party defendant, and that the officer must be regarded as using the term defendant, to designate the party defendant, composed of three persons. This is not in accordance with the common use of language as exhibited in judicial proceedings to designate parties defendant, when there are more than one. When the plaintiffs or defendants in a suit have been numerous, courts have authorized and even required, that the terms plaintiffs or defendants, should be used in the pleadings instead of all the names; but they do not appear to have authorized them all to be regarded as one and to be designated by the use of one of those terms in the singular number. Meeke v. Oxlade, 1 B. & P., N. Rep. 289; Davison v. Savage, 6 Taunt. 121. Such a use of language to designate several persons as parties defendant is not usual in common parlance. The officer, who made the return, must have known that there were three defendants, and yet he used the singular number apparently without any mistake, for the verb connected with the substantive is also in the singular number. Could a person, who inspected the writ and return upon it for that purpose, properly conclude, that the real estate of Henry Burgess had been attached ? No person should be deprived of his right to sell, or to purchase an estate as free from incumbrance, when he cannot ascertain by an inspection of the officer’s return, that it has been attached. There is nothing in the case authorizing the inference, that a stranger upon an inspection of the writ and return upon it could have concluded, that the words used to make an attachment were more applicable to one than to another of the three defendants.
When several persons subscribe an instrument containing a covenant or promise in language applicable to one person only, they are, as the plaintiff contends, all bound. Each one by subscribing the instrument adopts the language as applicable