Sargent v. Peirce , 43 Mass. 80 ( 1840 )

Wilde, J.

Each party in this case claims title under one Ichabod Handy, the original owner of the pew demanded. The pew was mortgaged to the demandant the 19th of January, 1835, and the deed was afterwards recorded, and actual possession of the pew was taken by the demandant, on the 26th of the June following. The tenant claims under a previous attachment and a subsequent levy of an execution; so that the case depends on the validity of said attachment and levy.

By the 7th section of St. 1822, c. 93, it is provided, that “ whenever a pew shall be attached or taken in execution, notice thereof shall be given in writing, by the attaching officer, to the clerk of the parish or religious society holding the church or meetinghouse, in which such pew is situated, or left at his dwellinghouse or usual place of abode.” The only notice given of the tenant’s attachment was an attested copy of the writ. There was no copy of the officer’s return. There was therefore no notice as to what pew the officer had attached ; and it is admitted that Handy owned more than one pew in the same meetinghouse. This we consider altogether an insufficient notice of the attachment. Neither the clerk, nor any party, was bound to inquire of the officer ; and without such inquiry, it could not be ascertained what pew was attached. There was a mistake in the copy as to the plaintiff’s name ; but, without relying on that mistake, we think it clear that the notice was insufficient.

And we think it equally clear, that there has been no sufficient record of the execution and the levy. By St. 1795, c. 53, § 1, all pews and rights in houses of public worship are declared to be real estate; and by the second section, it is provided, that all deeds and conveyances of, and executions extended on, such pews and rights, may be recorded by the clerk of the town wherein the same are situated, and being so recorded, shall have the same effect in law, as if the same had been recorded in the registry of deeds. By St. 1831, c. 59, the provision is that all executions, and the returns thereon, levied on pews, or rights of seat, in any house of public worship owned by any parish or religious society, may be registered in the records of such society or proprietors.

By these statutes, all conveyances of pews and executions extended thereon, duly recorded by the clerk of any town, or registered in the records of the parish or religious society to which the house of public worship belongs, are to have the same effect as if the same were recorded in the registry of deeds. In the present case, the execution has never been recorded, which is a fatal defect in the tenant’s title. Every thing essential to a statute title must appear of record. If, therefore, there were no legal objection to the validity of the attachment, still the tenant’s title would be essentially defective.

Judgment for the demandant