40 Vt. 219 | Vt. | 1867
.The opinion of the court was delivered by
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
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
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
Judgment reversed, and judgment for the defendant.