Brackett v. Ridlon , 54 Me. 426 ( 1866 )

WáltoN, J.

Real action. Yerdict for defendant.Plaintiff excepts. Several questions are presented for consideration.

1. One link in the chain of the defendant’s title is a levy. The plaintiff claimed that there was evidence on the face of the writ, to show that the only schedule of items contained in or annexed to.it was annexed after the attachment; and the defendant offered evidence tending to prove the contrary. The presiding Judge instructed the jury that, as the demandant did not claim to have obtained his title between the time of the attachment and levy, the testimony was immaterial: that if the fact was as the demandant alleged, and the attachment was void, the creditor’s title would be deemed to have accrued on the day of the levy. The de-mandant contends that this ruling was wrong; that inasmuch as the officer’s return upon the execution states that the land levied upon had been attached on the original writ, the attachment is thereby made tlie basis of the creditor’s title, and if the attachment was not valid, his title fails; that it cannot stand upon the levy alone as it would if no attachment on the original writ had been attempted, or the levy had been made without reference to the attachment. We think this view of the law cannot be sustained. If the attachment and levy are both valid, then the creditor’s title will relate back to the attachment and take date from that time. If the levy is valid and the attachment void, then the creditor’s title will take date from the time of the levy; and the fact that the officer refers to the attachment in his return upon the execution, will not affect the validity of the levy. We see nothing erroneous in the rulings of the presiding Judge upon this point.

2. A deed from the debtor, through which the demand-ant claims title, was not recorded till long after the levy. The demandant introduced evidence tending to prove " actual notice” of this deed to the creditor before the attachment, and to some of his successors in title; but the presiding Judge instructed the jury that unless it was shown that the tenant had actual notice of the deed before acquiring his title, notice to the parties preceding him would not avail; that the tenant’s title could not he affected by such notice to his predecessors in title, if the tenant was himself an innocent purchaser for value in good faith without actual notice of the deed. To this ruling the plaintiff excepts. He contends that if the attaching creditor hud notice of the unrecorded deed, he acquired nothing by his levy, and could transmit no title to his grantee, —certainly not if the latter also had notice of the deed, — and that the latter could give no title even to a bona fide purchaser without notice. This reasoning is more plausible than sound. It must be remembered that without giving effect to the unrecorded deed the tenant’s title cannot be defeated, and that the law expressly declares that such a deed shall not be effectual against any person, except the grantor, his heirs and devi-sees, and persons having actual notice thereof. (R. S., c. 73, § 8.) If the tenant is neither the grantor, nor his heir, nor devisee, how can the deed bo allowed to affect his title without violating the express provisions of the statute? Clearly it cannot. We think the ruling of the presiding Judge was correct.

3. The presiding Judge ruled that the levy was valid; that the then existing provisions of law were substantially complied with. To this ruling the plaintiff excepts. He contends that the appraisers’ certificate is defective in not stating whether the estate appraised by them was an estate in severalty or in common, in possession, reversion or remainder, as required by the Revised Statutes, c. 76, §3. The appraisers say they viewed a parcel of land shown to them as the estate in fee simple of the debtor, and that they appraised it as the estate in fee simple of the debtor. A " fee simple” is the largest estate known to the law, and when this term is used, and no words of qualification or limitation are added, does it not necessarily imply an estate owned in severalty, and an estate in possession ? An estate not in possession, not owned in severalty, must be less than a fee simple. It is undoubtedly true that a person may own a remainder or- reversion in fee. But such an estate is not a "fee simple;” it is a fee qualified or limited. So, when a person owns in common with another, he does not own the entire fee, a " fee simple;” it is a fee divided or shared by another. When, therefore, the term "fee simple” alone is used, it means an estate in possession and owned in severalty. In other woi’ds, it means the largest estate known to the law, one which embraces the entire value of the land, not an estate that must be waited for, or shared with another. We think the ruling of the presiding Judge on this point was correct. Boynton v. Grant, 52 Maine, 220; Stinson v. Rouse, 52 Maine, 260.

4. The demandant requested the presiding Judge to instruct the jury, that if they found the demandant had title to the premises as tenant in common with others, that he was entitled to possession of the whole as against a tenant holding only by possession; but the presiding Judge declined to give this instruction. The plaintiff concedes that, inasmuch as the jury found that he owned no estate in the premises, this instruction becomes unimportant, and need not be examined.

5. Another point urged against the validity of the levy is that the certificate of the appraisers and the return of the officer are not written upon the back of the execution as the law requires. (R. S. c. -78, §§ 3 and 5.) No such point appears to have been taken at the trial, and there is no evidence before us that satisfies us that they were not upon the back of the execution. The copies in the cage are on separate sheets of paper fastened together, but we do not think it would be safe to infer from that fact that the originals are in the same condition. The appraisers’ certificate speaks of the within named creditor, and of this execution, and the officer’s return uses similar expressions. The language, therefore, indicates that they are written upon the back of the execution. In the absence of more satisfactory proof to the contrary, we shall act upon the presumption that the officer and the appraisers did their duty in this particular. Exceptions overruled.

Judgment on the verdict.

Apple TON, G. J., Cutting, DioxeksoN and Danxoeth, JJ., concurred.