35 Vt. 2 | Vt. | 1861
It is insisted by the defendants in this case that the levy of the execution on which the plaintiff bases his right to recover is void by reason of irregularities in the proceedings of the officer in making it.
•It appears from the case that the land in controversy is one of two pieces of land that were set off at the same time, lying separate from e ach other, one piece situate in Brookfield and the other in Williamstown, two adjoining towns. The land in controversy is in Williamstown. It is conceded that two of the appraisers were appointed from Brookfield and one from Williamstown. This, it is insisted, invalidates the levy. By the 23rd section of the statute relating to the levy of executions, is is provided, that when an execution is extended on any real estate, the same shall be appraised by three judicious and disinterested freeholders of the vicinity, residing in the town in which such estate lies. If the question rested solely upon the construction and effect of this section, the position taken by the defendants’ counsel would be entirely sound, — there would have been such a departure from the requirements of the statute as would render the levy void. But by the act of 1854 it is provided, that “ when execution is' extended on any real estate situate in two or more adjoining towns, the same shall be appraised by three judicious and disinterested freeholders of the vicinity, resident in either of the towns.” This statute would seem to be sufficiently broad in its terms to cover a case like the present, but it is argued that this statute was intended to apply only to cases where an execution is extended upon a piece of land across which the town line runs, the land all lying together in one piece, and not to detached parcels lying in the different towns. That
In this case all the forms prescribed by statute have been complied with; no question is made as to the character or ability of the men appointed to make the appraisal, or as to the manner in which they discharged the duty, or as to the perfect good faith of all parties engaged in making the levy, neither is it claimed that any injustice has been done. The magistrate, in appointing the appraisers, evidently intended to comply with the act of 1854 ; if he erred in the construction of it, it is not remarkable, for we are not entirely agreed as to it, after full argument. The whole case, taken together, is one where the effect of the levy may well be considered as doubtful, and' the parties having acquiesced therein for the period of two years, it is now too late for the defendants to take advantage of any such defect.
The fact that the plaintiff set off the whole premises without noticing the mortgage, is a matter of which the debtor cannot complain. He is in no respect injured thereby. His whole interest in the estate is taken, and if the creditor was willing to
The plaintiff excepted to the rulings of the court as to • the admission of the evidence offered to show notice to the plaintiff of the existence of the deed of the premises in question from Andros A. Reed to Andros Reed, and also as to its effect, if found to be true. The recording of a deed in one town conveying land in such town, is of itself no notice of the conveyance by the same deed of lands lying in another town, in which such deed is not recorded. This principle was recently recognized in a case decided in Rutland County, in which one Lapham and the Danby Bank were parties, not yet reported ; indeed, no such effect is claimed for it in this case. But the evidence offered was not only that the deed was so recorded, but that the plaintiff had actual knowledge of the fact, had examined it, read the description of the premises conveyed, and had such knowledge of the premises in question as to know from the description that the deed conveyed the premises. This we think was clearly evidence tending to show such knowledge, and such evidence as he would be bound to regard. It is not a mere copy of a deed which he examines, but a record, in its appropriate place, made by a public officer, and in accordance with the requirements of law. Such an examination would be just as satisfactory to -the party, and as effectual in law, as an examination of the original deed. There is a bare possibility of a mistake, but a party, with such knowledge, cannot avoid its effect on the ground of such a possibility.
As to the effect of such notice, the rule -seems to be now well settled in this state that an attaching creditor off real estate with notice, either actual or constructive, of the true state of the debtor’s title, stands in no betterjpósition than a purchaser with the same notice. This doctrine is fully recognized in the case of Hackett v. Callender et al., 32 Vt. 97.
The rule is different as to personal property which the vendee suffers to remain in the possession of the vendor. Such a sale the law regards as fraudulent, and void as to creditors, for the
We find no error in the rulings or charge of the court below.
Judgment is affirmed without cost to either party in this court.