Corbett v. Maine , 53 Me. 542 ( 1866 )

Appleton, C. J.

The plaintiffs and defendants severally claim under levies upon the real estate of one Edmund Smith. Those under which the tenants derive title are prior in time. Their title, therefore, depends upon the validity of those levies.

The executions, upon which the levies relied upon by the tenants were made, are against Edmund Smith and two others. The exception taken to their validity is that the officer’s return does not show the debtor, upon whose real estate the levy was made, chose an appraiser.

By the certificate of the appraisers, it appears that they appraised certain real estate " as the estate in fee simple of the debtor within named Edmund Smith.”

The officer in his return uses the following language : — "By virtue of this execution, I this day seized the real estate described in the foregoing certificate of the appraisers, and having given notice thereof to the within named Edmund Smith, and allowed Mm a reasonable specified time within which to choose an appraiser, and having caused three disinterested men, to wit, Edward T. Little of Auburn, chosen by the creditor, Archibald "Wakefield, chosen by the debtor, and Jacob Gould of Auburn, chosen by myself, to be duly sworn faithfully and impartially to appraise such real estate as should be shown to them to be taken by force of this execution, and the real estate described in the foregoing certificate of the appraisers now referred to for a description thereof having been shown to them, and to me * * as the estate in fee simple and in severalty of Edmund Smith, the debtor aforesaid,” &c., &c.

The appraisal was of the real estate " of the debtor within named Edmund Smith.” The notice was "to the within named Edmund Smith” to choose an appraiser and time was given him in which to choose. The choice of an appraiser was by " the debtor, and the execution were satisfied by a levy upon the real estate " of Edmund Smith the debtor aforesaid.” Edmund Smith is described as the "debtor within named” and "the debtor aforesaid” in officer’s return. No reference is made to any other debtor or debtors. The natural and obvious construction of the return is that the debtor, by whom the appraiser was chosen, — " was the debt- or within named” whose land was seized and to whom notice was given. The terms "the debtor” and "the debtor aforesaid” have reference to "the debtor -within named Edmund Smith.”

The case is distinguishable from that of Harriman v. Cummings, 45 Maine, 351, and from that of Ware v. Barker, 49 Maine, 358. Exceptions overruled.

Cutting, Dickerson, Danforth and Tapley, JJ., concurred.