Keen v. Briggs , 46 Me. 467 ( 1859 )

The opinion of the Court was drawn up by

Kent, J.

The return of the officer shows that he gave the debtor notice to be present at the time and place, to select an appraiser, which he utterly refused to do. This is sufficient evidence of notice as required by the statute. Smith v. Keen, 26 Maine, 411; Fitch v. Tyler, 34 Maine, 463.

The officer did not state the items of his charges and fees, nor the gross amount, in distinct terms. But he and the appraisers say that the land was appraised at a,certain sum, “ which is the amount of this execution, and fees and charges.” We have the amount of the debt and cost in the execution, and, adding a month’s interest thereon, we have a sum which, taken from the appraised value, leaves a balance which must have been the officer’s fees and charges. “What may be made certain is certain” in the eye of the law. Rawson v. Clark, 38 Maine, 223.

It has been settled that it is not necessary for the officer to state the items of his charges. Tibbetts v. Merrill, 12 Maine, 122. Nor will a charge of illegal fees vitiate the levy. Sturdivant v. Frothingham, 10 Maine, 100.

The fact that more land was taken than was necessary to satisfy debt and costs as taxed, must distinctly and affirmatively appear. Rawson v. Clark, 38 Maine, 223; 23 Maine, 498.

This does not appear on the return as it stands. It only appears that enough was taken to pay the amount of the execution and fees and charges. It does not appear that any land was taken beyond the quantity needed for that purpose. The charge for fees by the officer can be determined as satisfactorily as if he had stated them in a gross sum; and we have seen that whether that sum was strictly a legal charge or not could not affect the levy.

We have no doubt that, within the principles of the case of Fitch v. Tyler, 34 Maine, 463, the officer may amend his return, according to the facts stated in his affidavit, although he may now be out of office. The rule seems to be, that the debtor should stand chargeable with all the facts, the existence of which is indicated by what is stated on the record, and can be satisfactorily shown to the Court.

Rut, without amendment, the plaintiff is entitled to judgment for possession, and damages for mesne profits.

Tenney, C. J., and Appleton, Cutting, May, and Davis, J. J., concurred.