150 Mass. 239 | Mass. | 1889
This is a writ of entry to recover a parcel of land. The demandant purchased the premises at an execution sale, and the only question raised by the report is whether the execution was valid. A valid execution was issued on February 18, 1887, and was put into the hands of one Shumway, a deputy sheriff. He advertised and sold the land by auction in due form, and received one hundred dollars down from the purchaser, after which the auction was adjourned sine die. The purchaser, however, was unable and refused to pay the rest of
There is no doubt that the officer and creditor had a right to abandon the first sale. Croacher v. Oesting, 143 Mass. 195. We see no reason for denying the validity of the alias execution. It is to be presumed that the first levy was begun by notice of the first sale, that being the mode provided by statute in case of a sale. Hardy v. Safford, 132 Mass. 332, 334. Pub. Sts. c. 172, § 45. But this notice would not apply to a subsequent sale, because the auction at which the first sale took place was adjourned sine die, and the notice required by the Pub. Sts. c. 172, § 45, is notice of the sale by which the levy is made. By this section the levy is to be “ considered as made at the time of the first notice of such sale.” The sixty days from the date of the original execution had run before the alias was taken out. It was then too late to begin a new levy under the original execution by giving a second notice. Pub. Sts. c. 171, § 22. Prescott v. Wright, 6 Mass. 20, 22. The only thing to be done was to get an alias. In Croacher v. Oesting, ubi supra, and in Bell v. Walsh, 130 Mass. 163, the notices under which the respective sales took place were both given within sixty days from the date of the original execution.
As to the manner in which the alias execution was procured, no doubt it would have been more regular, because more strictly according to the truth, for the officer to have returned the original execution unsatisfied. But the effect was the same whether the alias execution was issued on that ground, or on the ground that the original never had been in the officer’s hands. Either
The suggestion that, if the officer had made a return, the case would have been within the Pub. Sts. c. 172, § 53, misapprehends the purpose of that section, which is directed to cases where executions have been fully levied and then have been found to be inoperative, either wholly or in part. See Perry v. Perry, 2 Gray, 326.
Judgment for the demandant.