Wolcott v. Ely

84 Mass. 338 | Mass. | 1861

Hoar, J.

The demandant had the elder possession, claiming the fee, and he is therefore entitled to judgment, unless the tenant has shown a better title. The title of the tenant is under the levy of an execution, and to the validity of this two objections are made: first, that the return of the officer does not show a proper notice to the execution debtor to appoint an appraiser ; and secondly, that one of the appraisers appointed by the officer was the son-in-law of the creditor, and so was not “ a disinterested and discreet man,” according to the provisions of Rev. Sts. c. 73, § 3. The latter objection we think must prevail. The appraisers are to determine conclusively the price at which the debtor’s land is to be applied in satisfaction of the creditor’s demand. They are to decide between the parties upon a question important to their rights. In requiring that they should be disinterested, we do not think the legislature intended merely an exclusion of direct pecuniary interest in the result. Near affinity by blood or marriage is equally a disqualification. It is said by Lord Coke that “if the sheriff (who returns the jury), marry the daughter of either party, or e conversa, this is a principal challenge.” Co. Litt. 156 a. And the same rule has been applied in setting aside an award for partiality of an arbitrator. Butcher of Oroydon's case, cited in Earl v. Stocker, 2 Vern. 251. In Connecticut, where the statute provides that appraisers shall be “ indifferent freeholders,” it has been held that where one of the appraisers was a nephew by marriage, the levy was void for that reason. Fox v. Hills, 1 Conn. 295. The court say that “indifferent” means “impartial”; and that it may reasonably be presumed that a near relative will be under the influence of partiality. See also 7 Conn. 229 ; 9 Conn. 502; 13 Conn. 47-One of the definitions of “ disinterested ” given by Webster is “ indifferent.” Worcester gives as one meaning, “ superior to private regards ” ; and he defines “ indifferent ” as “ having no choice or preference.” If only a pecuniary interest were intended, the creditor, with the aid of the officer, might have for appraisers his father, son and brother.

But the tenant contends that as the officer in his return states that the appraisers were “ discreet and disinterested,” the return is conclusive, and the objection not open to the demandant. It was held in Boston v. Tileston, 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. There is another ground which is decisive against the levy. It is undoubtedly defective, because the return does not show that due notice was given to the debtor to choose an appraiser. This is a formal defect merely; and the parties have agreed, that if it was competent for the court below to allow an amendment of the return, according to the fact, such an amendment shall be taken to have been made. But we do not think it within the proper limits of judicial discretion to allow an officer to amend a formal defect in his return, when facts are untruly stated in other parts of the return ; and when, if the whole return were amended to conform to the truth, the amendment would be ineffectual and useless. If any amendment is allowed, it must, show the whole truth.

Judgment for the demandant.