5 Conn. 592 | Conn. | 1825
The defendants contend, 1. that the bill contains no averment, that the execution and the doings of the officer thereon were duly recorded or returned, but a mere recital of the evidence thereof; and 2. that the officer’s return sets off to the creditor neither the whole, nor a correct proportion, of the equity of redemption.
1. By the recital of the return, it becomes parcel of the bill; and it is included in the demurrer. The averment in the bill is, that the plaintiff caused the execution to be duly levied on the land; and that the same was set off in due form of law, in full satisfaction of the execution. The recording of an execution, and the return thereof, when levied on real estate, are essential requisites prescribed by statute. Tit. 63. p. 283. But it no where appears, expressly or impliedly, that these were ever done. The expression “duly levied,” has no reference or allusion to the acts of the town-clerk; and the recital of his certificate, is, certainly, not an averment. It is an established rule in pleading, that the plaintiff should declare on the facts constituting the gist of his action, according to their legal operation, and not on the evidence of those facts. Brunson v. Brunson, 2 Root 73. Cooke v. Simms, 2 Call. 39. Bacon v. Page, 1 Conn. Rep. 404. 1 Swift’s Dig. 601.
2. By the officer’s return, it appears, that the equity of redemption was appraised at 1200 dollars; that the debt due the mortgagee, was 211 dollars; and the execution and costs, 175 dollars, 11 cents. When an execution is levied on an
I am, therefore, of opinion, that there is nothing erroneous in the judgment complained of.
Judgment affirmed.
Parker v. Rule’s lessee, 9 Cranch 64.