.The opinion of the court was delivered by
Peck, J.
The plaintiff being in possession of the premises at the time of the commission of the alleged trespass, is entitled to recover’ unless the defendant shows title or right of entry in himself .at the time of the trespass complained of. As both parties derive their title, whatever they have, from Daniel Whipple, this common source *224of title must be taken to be good and valid. As the plaintiff has' a right to stand on his possession till the defendant shows some title or right of entry, the plaintiff’s title from Daniel Whipple is not material unless it is to enable him to avail himself of some objection to the defendant’s title that a stranger, unconnected with the source of title, could not successfully urge. As the plaintiff’s claim of title by deeds, commencing with a deed from Daniel Whipple of the entire premises, is subsequent to the levy against Daniel Whipple, upon an undivided portion of the premises, under which the defendant claims, it gives the plaintiff no right to recover if the defendant’s title is good under this levy, as it, at most, leaves the parties tenants in common, which is sufficient to defeat the action. If the levy of Ide against Daniel Whipple, under which the plaintiff claims Ul of the premises undivided, is good, the result is the same if the defendant’s levy is good, as the plaintiff in that case also is tenant in common with the defendant. An objection is made by tlio defendant’s counsel to this levy under which the plaintiff' claims. The validity of this levy does not seem to be material to the decision of the case, yet, as the question lias been argued, it may not he improper to dispose of it. The objection is that the officer does not state in his return that he caused the execution and levy to be recorded in the town clerk’s office, hut states that he left it “ in the town clerk’s office in said Newayk, together with seventy-five cents for recording the same, to he recorded in the records of lauds in said town.” It is necessary to the validity of a levy upon real estate that the execution and return of the officer he actually recorded in the town clerk’s office. The leaving it in the town clerk’s office with the fees for recording is not sufficient. Nor are we prepared to say that this statement of the officer is sufficient proof that it was there recorded, and seasonably recorded. But it is no part of the duty of the officer making the levy to record the execution himself, nor is he responsible for the accuracy of the recording by the town clerk. It perhaps is more usual for the officer to state in his return that he caused the execution and 1ns return of his doings to be recorded in the town clerk’s office. But this statement is made upon the faith of the certificate of the town clerk that he has recorded it. The levy is referred to in the *225exceptions, and upon it is a_ certificate of the town clerk that he recorded it on the 7th of June, 1864, the day the officer states in his return that he left it at the town clerk’s office for record. This certificate of the town clerk, in connection with the return of the officer, is prima facie, evidence that the execution and officer’s return were properly and seasonably recorded in the town clerk’s office, and is a sufficient compliance with the statute in this respect. It is not necessary to the validity of the levy that the officer making the levy should have superadded his statement iu his return, that the levy was actually^recorded, as the recording is not his act, but the official act of the town clerk.
The plaintiff’s right to recover in this action depends on whether either of the objections taken to the levy of Park against Daniel "Whipple, under which levy the defendant claims, is such as renders it-invalid. This levy is upon qSo °f the premises undivided. It is objected that as the execution was dated and issued more than a year and a day after the date of the judgment, without any intermediate execution, the levy made by virtue of it is void. It appears that the premises were attached upon the writ in the suit upon which this execution issued, that one Perry had a prior attachment upon the premises, upon which he recovered judgment, and levied upon some portion of the premises in due season to hold by virtue of his attachment, and that the levy under which the defendant claims was made and recorded in the town clerk’s office within five months after Perry’s levy ; and afterwards, and within the life of the execution, returned to the proper office whence it issued, and has been there recorded. An execution issued more than a year and a day after the date of the judgment is not void for that cause, nor are the proceedings under it. The proceeding may be erroneous but not void. A levy thus made cannot be successfully attacked collaterally. It remains valid until set aside by some proceeding brought directly for that purpose. The error is one that the execution debtor may waive by some positive act on his part, or he may choose to acquiesce in the proceeding, and not avail himself of his right to set it aside. It is in this respect analogous to an error in the judgment under which a levy is made. The judgment debtor may deem it more for his *226interest to allow such a; levy, and to acquiesce in it, than to be sub* jected to the costs of a scire facias to revive the judgment; and it is just and reasonable that he should have this election. In this case, the fact that Daniel Whipple, the execution debtor, was present at the levying of the execution, and participated in choosing appraisers, unexplained, tends to show a waiver of this objection. This, however, might perhaps be explained and its effect obviated in a proceeding brought directly to set aside the execution. Whether this error is one that is cured by lapse of two years under the statute relating to informal levies we need not decide, as for the reasons already stated this objection to the levy cannot prevail.
Another objection urged to the defendant’s levy is, that the county clerk had no power to issue the execution. It appears that the judgment was rendered by Daniel Bowker, justice of the peace, June 30th, 1859, and that his last term of office expired November 30th, 1860, and that he deceased January 25th, 1862, and that the county clerk issued the execution January 5th, 1864. Section 74, General Statutes, page 286, provides that, when any justice shall die or remove out of the county for which he was appointed, while a judgment by him rendered remains unsatisfied, the county clerk of the same county, on receiving the files in such case, and the record of the judgment, if such record were made, may issue exeeution in the same manner as the justice might do if in office. The judgment remaining unsatisfied, the justice might have issued an execution upon it at the time the clerk did, if he had been in office, and such execution would not have been void. The power of the clerk in this respect, according to the words of the statute, was coextensive with that which the justice would have had, had he still been in office. The power exercised by the clerk comes within the letter of the statute. But section 62 of the same chapter provides that when the term of office of any justice shall expire while a judgment rendered by him remains unsatisfied, he may, at any time within a year and a day after the expiration of his term of office, issue execution thereon, in the same manner as if ho remained in office. It is insisted that, as a year and a day had elapsed after the date of the judgment and before the decease of the justice, and before this exe*227cution was issued, the justice’s power to issue the execution under this section had expired before his death, and that the clerk had no greater power than the justice would have had at the date of the execution, had he been alive. Had the section giving the power to the county clerk been limited in terms to the same power .that the justice who rendered the judgment would have, if alive, the construction contended for by the plaintiff’s counsel might be correct. But the language, taken literally, gives the same power the justice would have “ if in office.” Had the justice been in office he might have issued the execution. There is no such necessary connection between those two sections, as requires the express limitation of time contained in the section giving power to a justice when out of office, to be incorporated by implication into that giving power to the clerk in office. This provision of the statute enabling the clerk to issue executions on justice judgments is remedial, and ought to be liberally interpreted to cure the mischief obviously intended to be remedied, if the language will allow it. A construction which will embrace the case under consideration, is not only according to the language used, but it best comports with other provisions on this subject. Sections 71 and 72, of the same chapter, require that when a justice shall die, or move out of the county, his files and records shall be deposited with the county clerk. It is clear that under these provisions justice Bowker’s files and records should have been deposited, on his death, with the county clerk ; and taking all these sections together, it is manifest that the intention was that when an execution issues, it should be issued by the officer who i's the legal custodian of the files and records on which it is based. As an execution issued by the justice, “ if in office,” would not have been void, this execution issued after his death, by the clerk, is equally valid, and consequently .this objection to the levy is not fatal. Another objection to this levy is, that although made and recorded in the town clerk’s office, within five months after Perry’s levy, and returned to the office from which the execution issued, within the life of the execution, it was not returned to the office from which it issued, within the five months. The levy is equally valid whether made and completed before or after the expiration of the five months. It was returned to the *228county clerk’s office before the date of the execution debtor’s deed to Bundy, under which the plaintiff claims title, so that in any view of this question the defendant’s levy was prior to ihis 'title of the plaintiff. This question is only important in determining whether the defendant’s -levy was so far completed within the five' months as to preserve the lien created by the attachment on the writ; and this only in view of the question as to which levy has priority, if the premises were attached on the writ in the Tde suit as seems to be conceded. If the Ide levy under which the plaintiff claims covered the entire premises, this question of priority would be important; but as each of the levies is upon only an undivided portion of the premises, the parties are tenants in common whichever levy is entitled to precedence. In an action of ejectment it would be material to decide which levy has precedence, as both taken together purport' to set off more than the entire premises. In an action of ejectment or petition for partition, one of these levies must yield to the other as to this excess, and no further ; but, in this action of trespass between tenants in common, it is not material in what proportions they hold. The question, which of these levies has precedence, can more properly be decided when an action is brought involving it. The question, therefore, whether in order to preserve a lien created by attachment on a writ, it is necessary that the execution and levy should be returned to the office from which it issued, within the five months,-is not decided. The defendant’s levy being valid, and the parties being tenants in common, the action cannot be maintained.
Judgment reversed, and judgment for the defendant.