5 Conn. 400 | Conn. | 1824
The plaintiff claims title under an execution, and the only question in the case, is, whether it was duly levied. The appraisers of the land levied upon were legally appointed ; and their appraisement, in the sheriff’s return, is set forth in the following words : “ On a view of said described premises, on which the execution had been so levied, the appraisers did, upon their oaths, appraise the said premises at the sum of 48 dollars, 70 cents, per acre, as the then present true and just value thereof to the creditor in this execution.” It does not appear by the return of the officer, that the appraisers made an estimate of the land levied upon in writing under their hands, or either two of them, and the same delivered to such officer ; and on the ground of this omission in the return, an objection is made to the plaintiff’s title. At the trial, the plaintiff offered to prove, that the appraisers made an appraisement under their hands of the land aforesaid, and delivered the same to the officer, before the land was set off, which he delivered to the defendant, to be redrafted and signed by the appraisers, and offered to produce the certificate in court ; but the testimony was ruled out, and a verdict directed for the defendants.
I will, first, consider the necessity of the appraisers’ certificate in writing ; and then, whether it is indispensible, that it should, by the officer's return, appear to have been made, and delivered, before the land was set off.
At common law, a title in land could not be acquired, by the levy of an execution. By the statute formerly existing, and recently repealed, p. 282. ed. 1808. it was provided, that executions might be levied on the land of the debtors ; and the value of the same being estimated by appraisers, appointed in a prescribed mode, that the indorsement of the officer made and recorded with the execution, should give title. His return was alone necessary to shew, that all the requisites of the law had been observed Pendleton v. Button, 3 Conn. Rep. 406. At the late revision, the General Assembly, in view of the former
The return of the officer is the legal and only evidence, that the prescriptions of law have been complied with. The object of it is. to shew to the debtor, that his land is transferred, and debt extinguished ; and to all the world, that the title is vested in the creditor. To this end, it is indispensible, that it exhibit proof of compliance with every necessary fact, and when this exhibit is made, that it should be conclusive. The return can neither he extended nor diminished, by testimony ore tenus ; for this would be, virtually, to annul it, and put every execution title in jeopardy ; or to make a title, when none has been
It is clear, that the return of the sheriff on the execution, at the foundation of the plaintiff’s title, is deficient in a necessary requisite ; and that it cannot be aided, by parol testimony.
New trial not to be granted.