Stanley v. Perley , 5 Me. 369 ( 1828 )

Mullen C. J.

delivered the opinion of the Court.

The title to that part of the demanded premises which is covered by Chandler’s levy, seems clearly to have been vested in him thereby$ because in his suit he caused the land to be attached on the sixth day of September, 1799, and having recovered judgment against Davis, he caused his execution to be levied within thirty days after judgment, and to be seasonably recorded ; and the title from Chandler has been regularly deduced to Nathaniel Perley; and the tenants are his heirs at law'. But the title of the demandant is under the deed of Davis, bearing date September 7, 1799, one day later than Chandler’s attachment, whose title to the land, on which he extended his execution, has relation back to September 6» Thus the tenant’s title is good, as to this part of the premises demanded. As to the residue of the premises, it is equally clear that the tenants have no title in themselves ; because, though Coburn regularly extended his execution on the same, and caused it to be seasonably recorded, and thereby legally obtained Davis’s title to the same ; still, an inspection of the power of attorney from Coburn, clearly shews that his attorney had no kind of authority to make the conveyance to Amos Perley ; and of course the title to such residue now remains in Coburn. The case is in no degree altered by the attachment and levy of Amos Perley on the land, as the estate of Davis ; who then did not own it. As we have just said, it was then the property of Coburn.

But there is another ground of defence to be examined. The 'writ in this case bears date November 25,1825; and the demandant declares on his seisin of the premises in question, within twenty years next before that time. It is competent for ■ the tenants, under the general issue, to disprove this allegation of seisin within that period ; though if the demandant had proved it as alleged, it would not be competent for them, on such issue, to prove that he had, since such seisin, conveyed the title to a third person, unless they held under such person; and in the present case, the tenants do not hold under Coburn. Wolcott v. Knight, 6 Mass. 418.

Does the evidence on the part of the tenants, disprove the alleged seisin of the demandant within twenty years; that is, that he has never been seised since November %5, 1805 ? On this point, the facts are these: The demandant’s deed from Davis, though dated September-7, 1709, was not registered till .Miry 3, 1800. Nowit appears that prior to that day, viz. September 9, 1799, Coburn made Kis attachment, and followed it up by a levy on the land, January‘HI, 1-801, which was within thirty days after his judgment; and the execution and return were seasonably recorded, as has been before stated; and his title is good, by relation, from the day of attachment. Thus it appears that no title passed by Davis’s deed to the demand-ant; but, on the contrary, Coburn, in January 1801, became the owner and actually was seised of the residue under his levy; and we have.no proof that since, that time the demandant has ever had- any exclusive and adversary possession under his deed. It is true, that in 1822 and 1823, the demandant claimed to own the land demanded, and once entered the mill standing thereon, and demanded possession ; but he never obtained it; nor had he then any right of entry.

There is no proof that Coburn, at the time of his attachment, had any knowledge of the existence of the demandant’s deed from Davis. The uncommunicated knowledge of the officer, even if it had existed at the time of the attachment, would not alter the case ; but it is not pretended that he knew of the deed at that time. The very object of an attachment is to bind the property attached. It is the incipient step towards acquiring a title; and if this step be fairly taken, and without notice of any existing conveyance from the debtor, it may be lawfully followed by a levy within thirty days after the rendition of judgment, and the title be thus perfected; though at the time of the levy, the creditor may have such notice.

There are some minor questions presented by the report; but according to the view which we have taken of the cause, it is of no importance to examine them. We see no ground on which the mo-ñón fox a new trial can be sustained ; and therefore there must be

Judgment on the verdict