Rollins v. Rich

| Me. | Jul 15, 1847

The opinion of the Court, Whitman C. J. taking no part in the decision, as he did not hear the argument, was drawn up by

Tenney J.

No objection is interposed to the recovery of judgment for possession of the land covered by the levy upon the first judgment obtained against John Rich and others. But it is insisted that no title was derived by the creditor under the other levy, it being inoperative and void. 1. Because the execution was directed to a coroner only, and not to a sheriff, or a deputy sheriff. 2. Because one of the persons undertaking to act as an appraiser, was not qualified by taking the oath; or one, who was so qualified did not act as such.

The execution, when it went from the hands, of the clerk, who signed it, was directed to the sheriff of the county of Waldo, where the land lay, and to his deputies. These officers were authorized to execute it; one of them did serve it, and made his return in his official capacity. When the execution was left at the registry of deeds to be recorded, with the return upon it, there had been an alteration in the direction. Sheriffs and their deputies were erased and coroners inserted. This alteration was unknown to the clerk, and was wholly unauthorized. When and by whom it was made, there was no attempt to show.

That the conveyance of this land by the debtor in the execution to John C. Rich, as against the creditors of the former then existing, of which the demandant was one, was fraudulent, seems established by the evidence in the case, and a defence of the action, by showing it otherwise, is not attempted. But it is insisted, that as the tenants were bona fide purchasers, ignorant of the fraud of the former conveyance, they were chargeable only with what the records disclosed, and this presented no evidence of title in the demandant, excepting the levy. The forms of writs are prescribed by the statute; and the form of an execution requires a direction to the officer, having power to serve it. But if executed by one having official power for the purpose, the omission of such direction may be supplied by amendment under leave of Court. Hearsey v. Bradbury, 9 Mass. 95" court="Mass." date_filed="1812-05-15" href="https://app.midpage.ai/document/hearsey-v-bradbury-6403865?utm_source=webapp" opinion_id="6403865">9 Mass. R. 95; Wood v. Russ, 11 ibid. 271. If there has been an unauthorized erasure of the direction, and a new and different direction inserted, the rule which allows the supply of an omission, would render proper, a restoration to the former condition of the precept.

But bona fide purchasers having no notice of the fraud, could not be affected by any such amendment or correction, made after their rights accrued, unless there is something upon the record, from which the correction can be made. If there is any thing there, indicating facts, which render it probable that every thing has been done necessary to secure the object attempted, and can prove that the law was complied with, he cannot with such notice, successfully supplant the other party. Fairfield v. Paine, 23 Maine R. 498.

Upon an inspection of the records, the tenants would find, that an execution in which neither of the parties was represented to be a sheriff or a deputy sheriff, was directed to a coroner and a levy made by a deputy sheriff; he must see that there was an irregularity; but that notwithstanding that, the levy was made by an officer competent to make it, and that the officer to whom it was directed had no authority for such a purpose. He knew where to find the original execution, and by calling upon the officer who had it in keeping, he could have learnt what has been shown, that there had been an illegal alteration made after it was issued, and that he might well suppose, that it was in all respects perfect and properly directed, when it went into the hands of the officer, and when the levy was completed; but whether so or not, the facts, which would have come to their knowledge by the exercise of common care, should have been a notice to them, that a correction of the alteration might well be apprehended. If a correction were made by an order of Court, the order and the correction could be entered upon the record in such a manner, that the just rights of all would be secured.

2. The names of the persons sworn as appraisers, and those who purport to be signed to the certificate of appraisal, are identical. In the return of the officer, he says, he had caused three disinterested and discreet persons, “ to be sworn as above, viz. Augustus C. Stiles, chosen by the within named Franklin Hollins, the creditor, Mark Stiles, chosen by the within named John Rich, the debtor, and Isaac Abbott, chosen by myself,” and after describing what had been done touching the appraisal, and the delivery of seizin by metes and bounds, he adds, “as by the certificates of the justice and appraisers above written, and which are to be taken as part of this return.” — The adoption of these certificates as part of the officer’s return recognizes the persons sworn, and who signed the appraisers’ certificate, as those, who were appointed, ■ in the manner pointed out to make the appraisal; and if the officer bad omitted in his return, all but their given names, it is difficult to perceive how there; could have arisen any misapprehension in reference to the appraisers who were sworn and acted as such.

After the execution on which the last levy was made shall be corrected so as to stand as it was when it was issued, judgment is to be entered for the demandant for the possession of the premises described in his writ.