Jones v. Buck , 54 Me. 301 ( 1866 )

Kent, J.

The title on which the plaintiff relies to sustain this action, is by a levy on an execution in his favor against the defendant. The defendant resists this title on the ground that the levy was so defective that the title has never passed out of him. The first objection is, that the description of the premises in the return of the officer is void for uncertainty or contradiction, and that it eannqt be applied to any existing lot of land, if we follow literally the points and boundaries named in the levy. The starting point, given in the levy, is the southeast corner of lot number twenty-nine. The land actually examined, appraised and which the other lines and monuments designate and set out, begins at the S. E. corner of lot No. thirty-two. There is no question, that, assuming the starting point as the corner of lot No. thirty-two, the description given in the return would correspond in all particulars with the lot which the plaintiff claims as being the one which passed to him by the levy. Does the fact that the starting point indicates another place or point, not. reconcileable with the other description, render the levy void for uncertainty? It seems now to be well settled, that where several particulars are named, descriptive of the premises conveyéd, if some are false or inconsistent, and the lines around the lot be sufficient of themselves, they will be retained and the others rejected, in giving a construction to a deed. Vose v. Handy, 2 Greenl., 322; Wing v. Burgis, 13 Maine, 111; a case where there was a mistake in the starting point in the levy, resembling this case in many particulars. The very recent case of Forbes v. Hall, 51 Maine, 568, reaffirms the same doctrine; Cate v. Thayer, 3 Greenl., 71; Keith v. Reynolds, 3 Greenl. 393.

In Massachusetts, the same rule was laid down before the separation, in. Worthington v. Hyler, 4 Mass., 196, and has been repeatedly recognized since. Melvin v. Prop’rs. of Locks, &c., 5 Met., 28; Bosworth v. Sturtevant, 2 Cush., 392; Thatcher v. Howland, 2 Met., 41; Loomis v. Jackson, 19 Johns., 449; Jackson v. Root, 18 Johns., 60; Jackson v. Marsh, 6 Cow., 281; Johnson v. Simpson, 36 N. H., 91. The last cited case is one where there was a mistake in the number of the lot, the line of which was made a boundary.

If we apply the principle laid down in these cases, to the facts before us, we find that there are several particulars stated in the levy that clearly show that the land levied on can be found only where the plaintiff contends that it is. The” first line is to run to a point opposite to the centre of the front door of the house. Then through the centre of the entry to the east line or side of the stable, and then, at right angles, by the east side of the stable, &c. Here we have indicated a dwelliughouse, and, beyond it a stable, having an east side, along which the line is to run. It is not pretended that there are any erections answering to these calls on any of the other lots. It is shown that they are all found on this lot No. 32. We therefore have no hesitation in deciding that the levy is not void or ineffectual on the ground of uncertainty in the description.

Another objection to the levy is made on the ground that the officer, in his return, says that the appraisers appraised the premises at a sura named, " and set off the same, with metes and bounds as aforesaid, to Joseph Baker, attorney to said Jones, to have and to hold to him and his heirs and assigns, in severalty and possession, in full satisfaction of this execution and costs of levying the same. I refer to and adopt the return of said appraisers as a part of this my return.” The return of the appraisers is, that they "have setoff said real estate, with metes and bounds as aforesaid, to said Jones, in full satisfaction of this execution and cost of levy.” The question is, whether this misrecital by the officer, of the appraisers’ return, which ho adopts as part of his return, is fatal. The officer says, that the appraisers set the premises off to Joseph Baker, attorney of the plaintiff, and refers to their return, or certificate, as showing that fact. But the appraisers say, in that certificate, that they set it off to Jones, the creditor. It may be a grave question whether, taking both returns, the fair construction is not, that the land was set off to the creditor and not to the attorney, even if it were necessary to an effectual levy, that the return should show, by direct assertion, that the land was set off to the creditor, his heirs and assigns, to have and to hold forever. But is this required ?

" All the debtor’s interest in the premises will pass by a levy.” R. S., c. 76, § 6. What makes a levy? The statute points out with great precision all the steps and acts necessary to make it effectual. A levy is a statute conveyance, and vests tbe title and seizin in the creditor without other conveyance. " It is the return of the officer of the appraisal and proceedings, which operates as a statute conveyance and divests the debtor of his title, and the delivery of seizin is an acceptance of that title by the creditor, in satisfaction of the debt.” This is the language of C. J. Siiepley, in Pope v. Cutler, 22 Maine, 109; Foster v. Gordon, 49 Maine, 57; Langdon v. Potter, 3 Mass., 215; Wyman v. Bragden, 4 Mass., 150, 4 Mass., 512; Bryant v. Fairfield, 51 Maine, 155. No deed or instrument of conveyance from the sheriff is required, as it is in case of a sale of an equity of redemption, c. 76, § 33. No words of grant are necessary in a levy. The title passes, not by deed, but by the levy, from the debtor to the creditor. When that is complete by the performance of all the statute requisites, and seizin is delivered and accepted, the title is perfect. All that the sheriff is authorized or required to do, after the levy is completed, is to deliver seizin and possession to the creditor, and to make a return of all his doings on the execution. The title rests on the return, and if that shows that all the statute requirements have been complied with, the title is good under it.

In this case the officer’s return shows such compliance. It states every thing that the statute specifies as requisite in § 5. Section 1 provides that "real estate may be taken to satisfy an execution, by causing it to be appraised by three disinterested men.” It is not a sale to satisfy the execution, and the transfer of the title by the officer to the purchaser, but the taking of the real estate and title thereto by the creditor on appraisement in satisfaction and payment of the execution. It is clear that the title under a levy can only pass to the creditor, and cannot to an assignee or grantee of a creditor, nor to his attorney. Baker can set up no legal title under the levy, even if he is to be considered as taking it for the benefit of the creditor, his client. The title, if it passes at all, passes to the creditor.

The sheriff in his return says that he delivered seizin and possession to Jones, the creditor, although he had before inserted the words objected to, in relation to Joseph Baker, attorney. The question is, whether the Insertion of these words, manifestly by inadvertence, avoids and renders nugatory the attempted levy ? To determine this question we may inquire whether any such language, or its equivalent is required by the statute; i. e. is it essential that there should be in the return a specific declaration that the land is sot off to the creditor ” to have and to hold to him and his heirs,” &c. If, instead of the name of " Joseph Baker, attorney to said Jones,” the return had read, ”to said Jones, the creditor,” would they have been absolutely necessary to □sake the levy valid. Might they not be regarded as superfluous and surplusage? The law does not require them. The return would be perfect without them, and the title would pass by force of the return, as it shows a full performance of all prerequisites to make a perfect levy, without the words in question. If then they were not necessary, and might be struck out and leave the levy good, if the true name had been inserted, may they not be regarded in the •same light when another name is inserted? Or, in other words, will a levy, perfect in all respects to give title to the creditor, with seizin delivered to the creditor, be rendered nugatory by the insertion in the return, by mistake or ignorance, or other cause, of the name of a person who could not, in any event, derive any title or interest therefrom to himself,— and when the whole sentence, in which the name is Inserted, might be struck out as unnecessary, even if it had correctly named the creditor ? It is to be observed that in the appraisers’ certificate, adopted by the officer in his return, the land taken is described as the estate in fee simple, in severalty and in possession of Moses Buck, the debt- or. This action is between the creditor and debtor, and as between them the above description is important in designating the land levied on in fact.

In the case of Balch v. Pattee, 38 Maine, 353, it appeared that the officer had first stated in his return, that the levy was on the 17th of February, 1851, but he certified at the bottom of his return, that the levy was completed March 11,' 1851. It was objected that this was fatal. The Court say, that " the officer having certified at the bottom of his return, that the levy was completed on March 11th, when nothing appears to have been done, or was necessary to give any additional effect to the proceedings, must be regarded as nugatory.” The levy was sustained.

We are aware that it has been decided that a statute levy must be perfect, and that it cannot be reformed in equity,. where there are subsequent purchasers, or levies by other creditors, subsequently. Lumbert v. Hill, 41 Maine, 475. It is not decided in that case that the levy cannot be reformed, if no third party has intervened and the title remains in the debtor, if the levy is inoperative. But, if it cannot be reformed, within the rules of equity, it does not follow that what is surplusage, and useless, and unnecessary, may not be rejected or disregarded, if what remains contains all that the statute requires. We do not question the doctrine, that such a mistake as this, if made in reference to any fact, or proceeding, or party, expressly required by statute and made essential to the validity of the levy, would be fatal. But we do not regard this in that light.

The conclusion is, that judgment must be rendered for the demandant. -Judgment for demandant.

Appleton, C. J., Cutting, Dickerson, Barrows and Tapley, <JJ., concurred.