93 Me. 25 | Me. | 1899
Real action, heard by the presiding justice, with right of exception. The plaintiffs claimed title under a sale on execution against the defendant. The presiding justice held that under the judgment, execution, return of the officer on the execution, and the sheriff’s deed, the plaintiffs had a prima facie title against the defendant. The only objection raised by the defendant was that the deed was insufficient. The question presented is not whether a sheriff’s deed alone is prima facie evidence of title —a question which must be answered in the negative, — but whether this sheriff’s deed is sufficient in form. The deed is made a part of the case; but the judgment, execution and return are not, although they were introduced in evidence.
I. The statute declares that the officer shall execute and deliver to the purchaser a “sufficient” deed. R. S., ch. 76, § 86. But it does not define what shall be deemed a “sufficient” deed. Undoubtedly a sheriff’s deed, in order to be itself alone prima facie evidence of a sale, must show upon its face that the officer had authority to make the sale, and must show all the essential requirements of a valid sale. But in this case it is important to notice that the plaintiffs did not rely upon the deed alone to establish a prima facie title. They introduced the judgment, and the executions and returns thereon. The executions, which are presumed to be regular in form, showed their dates, the amount of the debts and costs, and the court from which they issued. The returns, if regular and complete, showed all of the officer’s doings upon the executions. And in view of the fact that no objection was made to the returns, but only to the deed, we must assume that the returns were sufficient to show valid liens by seizure, and that the liens continued until the time of sale.
The question now arises whether it is necessary that a sheriff’s
We think Stinson v. Ross is decisive of the first point raised by the defendant. The return supplies what the deed lacks. This objection cannot be sustained.
II. The deed shows that the officer seized the land and sold it upon two executions in favor of Hill, Pike and Company, and against Bertha Reynolds. The proceedings upon these two executions appear to have been simultaneous throughout. No objection having been made to the sufficiency or regularity of the proceedings prior to the execution of the deed, we must assume, as before, that the sales were regular, and that it so appeared by the returns
III. There is no question raised but that the Bertha Reynolds named in the executions, and the Bertha J. Reynolds whose land was sold, are the same person. Indeed, that fact was necessarily found by the presiding justice. But the defendant claims that when a sheriff’s deed purports to convey the land of Bertha J. Reynolds, and recites that the executions ran against Bertha Reynolds, the deed is inoperative ipso facto. In this deed, the officer attempted to remedy the difficulty by inserting a recital that “Bertha J. Reynolds,” the owner of the land, and “Bertha Reynolds,” the debtor, were identical. But it was no part of the officer’s duty to make such a recital, and it is not evidence of the truth of the fact stated. Innman v. Jackson, 4 Maine, 237; Phillips v. Sherman, 61 Maine, 548. Still, we think that the difference in the name was not fatal to the deed, and that it was competent to show the identity of the person by evidence aliunde. Persons sometimes use, and are known by, two or more names; and when that is so, it is always competent to show the identity of the person by parol. So, if Bertha J. Reynolds was known as well by the name of Bertha Reynolds, that fact could be shown by parol. Even the strictness o'f the criminal law allows such proof upon the plea of misnomer. The parol evidence goes to the question of identity. The same principle applies as would in case there were two John Smiths in a town, in which case parol evidence would be admissible to show which one was the grantee in a deed to “John Smith,” that is, to show the identity. If a person is known by one name as well as by another, and is sued in the former name and execution issue, it surely cannot be said that. property held by him in the latter name is beyond seizure and sale on the execution, especially, as here, where no rights of third parties have intervened. In Dutton v. Simmons, 65 Maine, 583, where an attachment was held void, because in the return of the officer to the registry of deeds, the defendant was described as
The defendant’s counsel in his brief raises the point that the deed runs to Charles D. Hill and Willard H. Pike in their individual capacities, while this suit is in favor of the firm of Hill, Pike and Company. The latter fact does not appear in the bill of exceptions; and if it did, the point would not bo tenable.
The defendant does not press her exceptions to the ruling that her insolvency proceedings commenced after judgment and seizure were not a bar to this action.
Exceptions overruled.