19 Me. 274 | Me. | 1841
The opinion of the Court was delivered by
The demandant, haying the interest of the mortgagee, and it being found that the money secured by the mortgage has not been paid, is entitled to prevail against any title derived from the mortgagor. He might maintain a writ of entry, without declaring on the mortgage; and if the tenant would set up a right in equity to redeem in himself, or any one under whom he holds, he should set it up in defence, to restrict the demandant to a conditional judgment. This not having been done, the . demandant is entitled to judgment on the- verdict, whatever may be the title derived from the sale of the equity on the execution' in favor of John Ruggles.
With regard to the acknowledgement of the deed from the officer to the demandant upon that sale, the authority of the magistrate, by whom it is certified, is not controverted, arid it must be taken to have been done in the county where he has jurisdiction. The law does not require, that the place where it is taken should appear in the certificate. That not being dated, the word then, which is a relative term, indicating time, must refer to the date of the deed. And as the grantee is in possession, claiming under it, it must be taken to have been
When the officer, having previously taken the preliminary steps, sold the equity of redemption and made, executed, acknowledged and delivered a deed to the highest bidder, the title of the execution debtor is thereby divested. Publicity of the seizure and sale is by law required to be given in the fullest and most eflectual manner. Unless it is redeemed within the time limited, or the sale is abandoned, the same property cannot be again seized by another creditor. The return of the officer, on the execution, is additional notice to the public of his proceedings. The statute does not make it essential to the validity of the sale, that the officer’s deed should be recorded. St. of 1821, c. 60. The eighteenth section provides, that his deed shall be as eflectual to convey the equity, as if made by the debtor. Thai may be considered as declaring, that these proceedings operate a statute transfer of his title. If the registry of the deed is necessary to put the estate out of the reach of other creditors, or of a subsequent purchaser, it is deducible by construction. And it being a public transaction, notified by advertisements posted and published, and by the officer’s return, we are of opinion, that a subsequent levy or sale, by another creditor, although the purchaser’s deed may not have been recorded, ought not to have the effect to defeat his levy. It might have the effect to give more perfect notice to purchasers and others, if the officer’s deed should be required to be recorded, within a limited period, as in cases of levy. But this is a matter, which belongs to the legislative department.
Judgment on the verdict.
