34 N.H. 278 | N.H. | 1856
At the time of the attachment of the demanded premises by the plaintiff, on the 16th of December, 1848, the defendant was in possession of them under his deed from Leonard Johnson. The action in which the attachment was made was duly entered and remained pending in court until the November term, 1849, when judgment was recovered by the plaintiff, and execution issued thereon. At the time of the attachment the premises were under a mortgage given by the defendant to Hodgdon; but this mortgage could not have been set up against the attachment, as it was not recorded until the 1st of May following the attachment in December. This mortgage was also released by the quitclaim deed of Hodgdon to the defendant, on the 18th of July, 1849, prior to the rendition of the judgment in the suit in which the attachment was made. The other mortgage from the defendant to John Mathes was given while the premises were under the plaintiff’s attachment, and of course could not prevail against the attachment, unless that were lost before the levy of the execution.
It is claimed by the defendant that such is the fact, by reason of the plaintiff’s failing to levy the execution within thirty days after the rendition of his judgment. It appears from the return of the officer making the extent that an appraiser was sworn within the thirty days, but in the return the appointment of the appraiser is stated to have been made under a date subsequent.
By sec. 5 of chap. 195 of the Revised Statutes it is provided that a levy, commenced by the appointment and swearing of an appraiser, may be completed before the return day of the execution ; and it is contended by the defendant that the levy cannot be considered as commenced so as to preserve the lien under the/ attachment, unless the return upon the execution shows both an appointment and swearing under a date within the thirty days. It is unnecessary, however, to consider in this case whether a return by the officer of the swearing of an appraiser within the thirty days, implies an appointment at the time of swearing; because, upon the supposition that the lien under the attachment was lost, the extent of the execution upon the demanded prem