9 N.H. 24 | Superior Court of New Hampshire | 1837
delivered the opinion of the court.
It is insisted, in this case, that nothing passed by the extent under which the demandant claims, because the execution was not duly returned at the term when it was returnable, or at least it does not appear to have been so returned; and that if any thing did pass, a copy of the record of the extent in the clerk’s office was the only admissible evidence to prove an extent.
However well founded these objections might have been
Indeed, it was decided in the last mentioned case, that copies of the execution and return, attested by the clerk, were the only evidence admissible to prove an extent, unless these had been lost after the return. As soon as the execution and return are recorded in the office of the register of deeds, the extent may be considered as complete. But the proper evidence of an extent is copies of the execution and return on file in the clerk’s office. It is immaterial when the execution is returned to the clerk’s office. It is enough if it be returned at any time before copies are wanted to prove the extent. The court is, therefore, of opinion that these objections to the extent cannot prevail.
It is further objected, that the extent is void, because it does not appear that the person by whom an appraiser was chosen for the creditor had authority to make the choice. But this objection is not well founded in fact. The sheriffs return is at least prima facie evidence that the person who made the choice was the agent of the creditor. And since the creditor has adopted the extent and conveyed the land, this is conclusive evidence that the appraiser was chosen by his agent. These acts made him agent, if he were not so before. The court is, therefore, of opinion that this exception cannot prevail.
It has been insisted, in this case, that nothing passed by the deed of Marston to the demandant, because it was not legally acknowledged, and so not duly recorded.
But to this objection there are two answers.
In the first place, the taking of the acknowledgment of the deed was a mere ministerial act, that might be as well done by the justice out of his county as within it. The place where it was taken is wholly immaterial, and the deed is to be considered as duly acknowledged. 3 Pick. R. 404, Haskell vs. Haven; Comyn's Digest, " Justices of the Peace,” B, 1; Cro. Car. 213.
In the next place, as between these parties it is altogether immaterial whether the deed were duly recorded or not.
This objection must be overruled, and the result is, that there must be
Judgment on the verdict.