Byer v. Etnyre , 2 Gill 150 ( 1844 )

Dorsey, J.,

delivered the opinion of this court.

The County court, we think, committed no error in overruling the appellant’s objections to the admissibility of the writs of fieri facias, and the endorsements thereon. The first of which is, “that the endorsements on the said writs do not sufficiently shew a levy upon, or seizure of the grain in question.” There is no precise form of return to such executions prescribed bylaw; and that made by the constable on this occasion, as far as this objection is concerned, is in accordance with the returns usually made by such officers; and by common usage and acceptation, the term “levied” when thus used by constables, imports a seizure. But suppose the facts were otherwise; seizure is a matter in pais, which may be proved by parol evidence, and was so proved by the constable who made the same, prior to any objection being taken to the testimony. It is not the constable’s return which gives title to a purchaser under a fieri facias; but the seizure and sale under the writ. And the constable’s return is evidence, but not the only admissible evidence of those facts; a statement thereof, in the receipt for the purchase money given to the vendee, would be as effectual to transfer the title to personal property, as the most formal return indorsed on, or attached to the writ; and if there had been no return made, nor receipt given by the constable, and the seizure, sale, and payment of the purchase money were established by oral testimony only, the title of the purchaser would be equally good.

The remarks made upon the first objection are, for the most part, equally applicable to the second. The parol evidence of the constable obviating the defects, imputed to the returns made to the writs of fieri facias.

The only question raised on the second bill of exceptions in the court below, and on which the court decided was, whether a bill of sale, under the act of 1729, chap. 8, which enacts, “that from and after the end of this session of Assembly, no goods or chattels, whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property thereof be transferred to any purchaser, mortagee, or donee, unless the same be by writing, and acknowledged before one provincial justice, or one justice of the county where such seller, mortgagor, or donor shall reside, and be within twenty days recorded in the records of the same county,” was admissible in evidence, where the magistrate, who took the acknowledgment, omitted to state therein the official character in which he acted ; and where it was admitted by the parties in the cause, that the person before whom the acknowledgment was made, was at the time thereof, a justice of the peace of the Stale of Maryland, in and for Washington county, duly commissioned and qualified as such. The only ground assigned for the rejection of the testimony offered, was, that the person who took the acknowledgment did not, upon its face, make any mention of his official character, or state himself to be a justice of the peace. Which objection to the evidence offered, the bill of exceptions states, that “the court sustained, upon the ground aforesaid, and refused to permit the said instrument of writing to be read to the jury.” The act of 1729, prescribes no form of acknowledgment to be taken by the justice; much less does it require that the authority of the justice to take the acknowledgment, should appear upon its face. With equal, if not greater propriety, might it be insisted, that where the acknowledgment is made before a justice of the county, it should state, that the person was a resident thereof, who made the acknowledgment. Without such residence, the writing acknowledged is as inoperative and void, as if the person taking the acknowledgment were not a justice of the county. And yet, perhaps, not an instrument of the kind can be found, where the acknowledgment contains any such assertion of residence. And should the acknowledgment, contrary to the fact, state the residence of the party to be in a different county from that of the justice, the erroneous statement might be disproved, and the instrument acknowledged, established in its operation under the act of 1729 : although upon the face of the acknowledgment it appeared to be a nullity. See the case of Git- . tings vs. Hall, 1 Harr. Sr John., 18; and so, if the acknowledgment had stated the person taking it to be a justice of the county, when, in truth, he was not so, the falsehood might be proved, and the instrument invalidated. And, a fortiori, may the defect be supplied, by testimony aliunde, where the acknowledgment omits to state the official character of him, by whom it was taken. And the proof offered, even if not admitted to be true, as was the case on this occasion, was much stronger and more conclusive evidence of the fact of official authority, than would have been the mere statement thereof, in the body of the acknowledgment. This view of the case we think fully sustained by the opinion of this'court in Connelly vs. Bowie, 6 Harr. & John. 141, where, in an action of ejectment, a certified copy of a deed was admitted as evidence, by the county court, although the acknowledgment thereto, neither stated the official character of the persons taking it nor the county in which it was taken. This court, in reviewing the judgment of the county court, say: “The official character of the persons before whom the supposed acknowledgment was taken, does not appear on the face of it, and the paper is equally silent as to the county in which the acknowledgment was taken; nor is there any proof in the record showing, that John Ball and Turner Wootton were justices of the peace ; or that the acknowledgment was made in the county, in which the lands were then situate and for these reasons reverse the judgment of the county court. Is not the inference irresistible, that had there been proof in the record, dehors the certified copy produced, shewing that John Ball and Turner Wootton, (the persons before whom the acknowledgments were taken,) were justices of the peace of, and that the acknowledgment was made in, the county in which the lands were situate, the judgment of the county court would not have been reversed, for the defects appearing on the face of the deed; the copy whereof had been admitted by the county court, in evidence to the jury?

But, although the county court, in the case before us erred, in refusing to permit for the reason assigned, the instrument of writing to be read to the jury, as offered by the appellant, yet its refusal was justified upon a ground which does not appear to have been brought to its notice, but which this court are not at liberty to overlook. By the act of 1729, chapter 8, under the provisions of which the bill of sale before us was taken; its being recorded within twenty days “in the records of the same county,” is as necessary to its validity, as is its acknowledgment. The record contains no evidence of such recording: the usual certificate thereof, by the county clerk, not appearing by the record to have been indorsed on the bill of sale. It is true, that preceding the bill of sale there is the following written statement, viz : “At the request of Frederick Zeigler the following bill of sale was recorded, May 24th, 1841.” But this statement is signed by nobody ; and where or by whom recorded, non apparel.

The third bill of exceptions having been abandoned, this court are relieved from its consideration.

We concur with the county court, in its rejection of the appellant’s prayer, in the fourth bill of exceptions, that if the jury “believe from the evidence, that the said Frederick Zeigler had permission and authority from the said Mayhue and Lowman, before the delivery of the said writs of fieri facias, to the constable, to proceed and sell said grain in the ground, for his own use, and that the permission and authority were given on the premises, and in view of the said grain in the ground; and that the said Zeigler, did thereupon, proceed to advertise the said grain for sale, before said writs of fieri facias were so delivered, that the said facts amounted to a delivery of the said grain to the said Zeigler, and the plaintiffs are not entitled to recover.” Before the court could grant the prayer thus made to it, it must assume the non-existence of all the other oral testimony given in the cause; because, by the prayer, no part of it is submitted to the finding of the jury. In the absence of all proof, that any consideration was paid for the said permission and authority : or, that it was delegated by Mayhue and Low-man to Zeigler, on account of any debt due from the former to the latter; or for what purpose this delegation of power was made; to call on the court below to deduce the fact of the delivery of the grain to Zeigler, from the facts submitted by the prayer to the finding of the jury, was to ask the court to transcend its jurisdiction, and exert a power exclusively within the cognizance of the jury. The authority delegated, and its incipient exercise by Zeigler, are perfectly consistent, either with the delivery, or non-delivery of the grain. Delivery, in this case, was a fact dependent upon the intention of the parties, to be passed on by the jury, upon evidence being offered, which was legally sufficient for them to assume its existence. And so far from the court granting the appellant’s prayer, upon the finding by the jury of the facts enumerated, with equal if not greater propriety might the appellees have prayed an instruction from the court to the jury, that from their finding, only, the facts submitted to them in the appellant’s prayer, they were not warranted in finding the delivery of the grain to Zeigler.

Concurring in opinion with the county court, in its admission of the testimony stated in the first bill of exceptions ; and in its refusal to grant the appellant’s prayers in the second and fourth bills of exceptions, we affirm its judgment.

JUDGMENT REVERSED.