Kendall v. Irving , 42 Me. 339 ( 1856 )

Tenney, C. J.

It was a disputed question at the trial, whether any lien upon the premises was created by an attachment upon the original writ, in the action of Samuel Kendall, the demandant’s ancestor, against Richard Look. That writ was dated Nov. 21, 1850, and the return of attachment of all real estate in the county, is under date of Dec. 2, 1850. If the affirmative of this question is established, the demand-ant obtained a title, by the levy of the execution, issued upon the judgment in that action, and the death of his ancestor; if otherwise, the title of the female tenant, under the deed from Richard Look to her of Oct. 10, 1851, must prevail.

It is provided in R. S., c. 114, § 32, that “no attachment of real estate on mesne process, shall be deemed and considered, as creating any lien on such estate, unless the officer making such attachment, within five days thereafter, shall file in the office of the register of deeds in the county or district in which all or any part of said lands are situated, an attested copy of so much of the return, made by him on the writ, as relates to the attachment, together with the names of the parties, the sums sued for, the date of the writ, and the court to which it is returnable, except as mentioned in the 34th-section of this chapter.” Sect. 34, of c. 114, is as follows : — “But if the attested copy of the return, on the writ made, shall be lodged in the office of the register of deeds, as mentioned in the thirty-second section of this chapter, then the attachment shall take effect from the time it was made; otherwise, it shall take effect from the time when such copy of the return is so deposited in the registry of deeds, notwithstanding it may be after the 'summons or copy was served on the defendant.”

The copy of the return, which the officer certifies that he put into the office at Bath, directed to the register of deeds at Wiscasset, is, in its form, sufficient to answer the requirement of the law; but the return upon the writ fails to show, what is equally essential to create a lien on the property, that this was filed in the office of the register of deeds. Unless it appears, that the attested copy of the return, referred to by the officer, was seasonably lodged in the register’s office, the attachment cannot be regarded as perfected, and the lien created.

From the language of sect. 34, it is not made necessary that the officer should personally carry the copy to the register’s office; but it must be lodged there, or the property, returned upon the writ, if real estate, is not holden by the attachment.

The paper, purporting to be signed by Asa F. Hall as register, does not conclusively.prove that the copy of the return, as certified by the officer as having been put into the post-office at Bath, was ever lodged in the register’s office at Wiscasset; or that any such copy was lodged there. It does not upon its face purport to be a copy of such a copy as that described by the officer in his return,- neither is it to be treated as a certificate, that such copy had been lodged in his office. It is not a statement, by the person who signed it, that the copy so described, or any paper, was in the register’s office. If the words, “attachment dated Nov. 30, 1850,” were intended to refer to the copy of the return on the “writ, Samuel Kendall v. Richard Look, dated Nov. 21, 1850,” it is contradictory to the certificate of the officer in his return, which is dated Dec. 2', 1850.

The words appearing upon the paper, bearing the name of the register, are not that clear and conclusive proof, that the copy of the return required to be filed, lodged or deposited in the register’s office, in order to perfect a lien on real estate, which the Court can pronounce, as matter of law, sufficient to render the attachment good.

If the copy, attested by the officer, reached the register’s office, it is the evidence, with proof of the time when it was lodged there, from which the Court is to judge whether a lien upon the property returned as attached was created. And if the copy, which the officer certifies that he put into the post-office, was filed in the register’s office, it is there at this time; and if it is the one which the officer refers to and describes, it is sufficient to create a lien upon the premises. But when this question can be determined with absolute certainty, it is not wise that the Court, which is to decide the matter as a question of law, should settle the rights of the parties, by proof, defective in itself, and which may lead to erroneous results.

Exceptions sustained, verdict set aside, and new trial granted.

Rice, Appleton, Cutting and May, J. J., concurred.