Emery v. Legro , 63 Me. 357 ( 1873 )

Barrows, J.

It is true that the demandant must recover upon the strength of his own title, and that as he claims under a levy he must show all the necessary steps regularly taken to give him a perfect statute conveyance in that mode.

But it is competent for the clerk to correct a mere clerical error in the copies, and to supply copies of papers which make part of the report, even after the case has been entered upon the law docket. This being done, the defendant’s objections to the maintenance of the suit on account of the alleged want of a copy of the record of judgment in the suit Tompson v. Blaisdell, and the alleged discrepancy between the name of the appraiser as given in tbe certificate of the oath and the name as subscribed to the appraiser’s certificate, vanish. A reference to the report shows that the record of the judgment, as well as the docket entries in the suit, were made part of the case, and also a copy of the execution, and the officer’s return of the levy. By that return it appears that George F. Furbish took the oath as an appraiser and subscribed the appraisers’ certificate. Even if it is the fact that, through a misprision of the register of deeds, the initial of the appraiser’s middle name was erroneously recorded in that office, it would not vitiate the levy. The record as a whole would answer the requirements of the statute and give notice of the proceedings to all subsequent purchasers who might turn to the officer’s return, on file in the office of the clerk of the courts, to ascertain the truth, if the record in the registry of deeds exhibited the discrepancy alleged.

The copy of the order of notice and officer’s return, dated December 15, 1869, shows that Blaisdell, not being an inhabitant of the State, was, nevertheless, served with the order of notice by a copy in hand, delivered by a deputy sheriff of York county. The casual omission of the officer’s signature in the clerk’s copy first presented cannot avail now that the mistake has been corrected. The necessary inference from such a return by a deputy sheriff in York county is that Blaisdell was within the precinct when he made the service.

It matters not whether a non-resident was within the State when the writ against him was originally sued out, and his property attached, if he was within it and had actual notice of the pendency of the suit through a personal service by an officer of the court. To such a case the provisions of R. S., c. 82, §§ 3 and 1, for a continuance and the filing of a bond, do not apply.

It is further objected that the deposition of Edward W. E. Tompson is not admissible to prove the execution and delivery of the deed from Samuel Tompson, the levying creditor, to the plaintiff, because the commission from the com! went to take the deposition of Edward E. W. Thompson, and that the identity of Samuel Tompson, the levying creditor, with the Samuel Tompson who executed the deed to the plaintiff, does not appear. If there were any real question as to the identity of these persons with those named in the commission and levy, the objection should have been specifically made to the admission of the deposition at the time the case was presented at nisi prius. Upon these points the case falls directly within the rule and reasoning adopted and approved in Longfellow v. Longfellow, 54 Maine, 245. The deed purports to convey the grantor’s interest in the land in controversy, describing it by a reference to the levy on the execution against Blaisdell; and when such a deed, which had no relevancy if the levying creditor and the grantor were not identical, is offered and received without a suggestion on the part of the party adversely interested of objection on that score, such a suggestion will not be entertained in the final consideration of the case.

It is further urged that the deposition does not prove the execution and delivery of the deed. The witness returned the original deed annexed to his deposition and testified therein that he witnessed it on the thirtieth day of December, 1870; — that he “took the acknowledgment of the said Samuel Tompson to the said deed March 7, 1871, at which time the same was delivered.” There was no cross-examination. Merely formal proof seems to have been all that was called for. We think the above sufficient. ■

Judgment for the demandant.

Appleton, C. J., Walton, Dickerson, Danforth and Yirgun, JJ., concurred.