| Mass. | Oct 23, 1875
The ground taken by the tenant, that the demandant’s attachment was defeated because the clerk failed to enter in his attachment book the name of Jane A. Heath, as required by the Gen. Sts. c. 128, § 56, cannot be sustained. The statutes require that the officer making an attachment of real estate shall deposit the writ or a certified copy thereof, and so much of his return as relates to the attachment, in the office of the clerk of the courts, and expressly provide that no attachment shall be valid against a subsequent attaching creditor or bond fide purchaser, unless the writ or copy is thus deposited. Gen. Sts. c. 123, §§ 51, 52. They also require the clerk to note on the writ or copy the day, hour and minute when it is received, to file it in his office, and to enter on the attachment book the names of the plaintiff and defendant, the time when the attachment was made, the time when the writ or copy was deposited, and, if tho attachment is of real estate fraudulently conveyed, the name of the person in whom the record title stands. Gen. Sts. c. 123, §§ 53-56. But the performance of those acts by the clerk is not made a condition precedent to the validity of the attachment. The fifty-fourth section, as amended by the St. of 1860, c. 70, provides that the attachment shall take effect from the time the writ or copy is deposited. When the officer has deposited the writ or copy, he has done all which the law requires him to do in order to make a valid attachment. The clerk is in no sense the
The tenant offered to show that there was an error in the notice of the sale under the execution, as printed in the newspaper, the premises being described as situated on Avon Street instead of Union Street. But we are of opinion that this evidence was incompetent. The officer’s return sets out that the notice of the sale was of land situated on Union Street, and it is conclusive upon parties and all persons in privity with them. It has uniformly been held that the officer’s return of the acts done by him in the levy of an execution are thus conclusive. In Chappell v: Hunt, 8 Gray, 427, the officer returned that one of the appraisers was chosen by “ Chester Cornwall, the attorney of the debtor,” and it was held that it could not be shown that said Cornwall was not the attorney of the debtor and had no authority to act for him. In Campbell v. Webster, 15 Gray, 28, it was held that the officer’s return was conclusive evidence as to the competency of the appraisers, and could not be impeached by showing that one of them was not disinterested. The same principle was recognized in Dooley v. Wolcott, 4 Allen, 406, and Hannum v. Tourtellott, 10 Allen, 494. The case of Whitaker v. Sumner, 7 Pick. 551, more closely resembles the case at bar. In that case the notice of the sale published in the newspaper did not in fact specify any place of sale, but the officer’s return stated that he had advertised the place of sale. It was held that the return was conclusive, that the equity of redemption passed by the sale, and that the plaintiff, who was a subsequent attaching creditor, could maintain an action against the officer for a false return. The case of Wolcott v. Ely, 2 Allen, 338, is not in conflict with these adjudications. That case was submitted upon an agreed statement of facts, in which the parties agreed that one of the appraisers was not disinterested. The court, in the opinion, say : “It was held in Boston v. Tileston, 11 Mass. 468" court="Mass." date_filed="1814-10-15" href="https://app.midpage.ai/document/inhabitants-of-boston-v-tileston-6404238?utm_source=webapp" opinion_id="6404238">11 Mass. 468, that where the parties in an agreed statement of facts agree to a fact decisive of the title, the officer’s return, which would have been conclusive evidence upon a trial between them, is not to be regarded.” This is not in conflict with, but clearly recognizes the general rule that, in a trial between parties the officer’s return, when used in evidence, is cor elusive.