Howard v. Turner
6 Me. 106
Me.
1829
Check Treatment
Mellen C. J.

delivered the opinion of the Court.

The question whether covenants are dependent or independent, or whether a condition is precedent or subsequent, is to be answered by ascertaining the intention of the parties from 'an examination of such covenants or such condition, rather than from any precise collocation of words, or formality of language. 3 Comyn’s Dig. 88, 92. Now from an inspection of the deed of September 10, 1819, from the tenant to his son, it is evident that it was intended to pass the fee of the estate immediately to the grantee, subject, however, to be defeated by breach of the conditions expressed in the deed ; or in other words, that the estate was conveyed on a condition subsequent, though the language of the condition seems to be that usually employed in the creation of a condition precedent. It would have been singular and unnecessary for the grantor to reserve to himself, as he has expressed it, a life estate in one hundred acres of the tract conveyed, if no estate was to vest in the grantee until after the expiration of eight years. The only sensible construction is that the fee passed at the time of the conveyance, and that the conditions were subsequent. The second deed, of October 29, 1821, conveyed the life estate also to the son; and being thus owner of the whole estate, he had a right to convey the same to Ciarle; and by his deed of July 16,1822,. Clark became seised thereof, .subject to the conditions expressed in the two deeds of conveyance from the tenant.

The only question is whether the estate has been transferred to the demandants by the levy. It is a principle of law perfectly settled by repeated- decisions, that every thing that is made necessary by the 27th sec. of our revised statute, ch. 60, to pass the property in real estate, taken in execution, must appear by the return of the officer to have been done. Eddy v. Knapp, 2 Mass. 164; Barnard v. Fisher, 7 Mass, 71; Whitman v. Tyler, 8 Mass. 284; Williams v. Amory, 14 Mass. 20. One of the requisites of the statute is that the appraisers shall be sworn by a justice of the peace in the county where the real estate is situate. In the case before us, the return contains no proof whatever that John McLean was a justice ,of the peace. The officer’s return refers to *109his certificate as to the supposed fact that the appraisers were sworn and how they were sworn; and the certificate of McLean proves nothing and asserts nothing as to his acting in any official capacity. We cannot take notice that he was a justice of the peace, if in fact he was one. It has been decided that where the return was silent as to the statute qualifications of the appraisers, parol proof could not bo admitted to shew the fact. If a fact could not be proved, it cannot be presumed in support of the levy. As the return now stands we think the objection is a fatal one. But it appearing that the rights of third persons cannot be affected by an amendment of the certificate of John McLean, by adding thereto the words “justice of the peaceor by an amendment of the officer’s return, either of which will completely obviate the objection; we are disposed, in support of the proceedings, and for the advancement of justice, to permit the proposed amendment, and leave for that purpose is accordingly granted. After the proceedings shall have been so amended, lei judgment be entered on the verdict.