Skolfield v. Skolfield , 90 Me. 571 ( 1897 )

Savage, J.

Exceptions to the acceptance of the report of commissioners selected to set out dower to the demandant on a writ of seizin. The writ issued July 17, 1894, and it contained a mandate that it should be returned to the term of the court then next to be held on the fourth Tuesday of September, 1894, and the writ was accordingly so returned. Exceptions to the acceptance of the report of the commissioners were then taken, and those exceptions were sustained by this court, 88 Maine, 258.

In the opinion in that case, it was suggested that the irregularities which had been complained of, and which had proved fatal, could be “ corrected on a new assignment.” At the February term of the court, 1896, the report of the commissioners was “re-committed to set out dower anew in accordance with the requirements of law,” and upon the same writ of seizin, the same commissioners, being newly sworn, made a new assignment. Their report thereof, attached to the return on the writ, was returned into court at the June term, 1897. The report was accepted, and the tenant excepted.

I. The tenant claims that the writ of seizin having been returned in accordance with the mandate contained therein, after the first assignment, was functus officio ; that the new assignment should have been made upon an alias writ of seizin; or if the doings on the writ of seizin, in the first instance, were a bar to the renewal of the writ, that scire facias should have been brought and a new writ obtained, and therefore, that all the proceedings now complained of are void. The counsel for the tenant bases his reasoning upon supposed analogies between writs of seizin, and executions and writs of possession.

We are unable to concur in this view. We see no objection to the course which was pursued in this case. Writs of execution, and writs of possession which are likewise writs of execution, are final judicial processes, and upon being properly served and returned take effect, without further order or action of the court. The statute fixes the time when they shall be made returnable. Alias executions and writs of possession issue at any time after former ones have been returned, as a matter of course. R. S., chap. 82, § 140 ; Belcher v. Knowlton, 89 Maine, 93. Unlike the service of executions and writs of possession, the doings of commissioners under a writ of seizin, to set out dower, have no efficacy until accepted and approved by the court. Writs of seizin, in this respect, are more analogous to warrants to commissioners to make partition. An assignment of dower is, in effect, a species of partition. The report of the commissioners in either case must be returned to the court for further judicial action. The statute prescribes no time within which a writ of seizin must be returned. Necessarily it must be returned to a term of the court.

The writ in this case was originally made returnable to a term certain, and it was so returned. But the assignment of dower was void because of irregularities in procedure on the part of the commissioners. Their report instead of being accepted was re-committed. This court is of opinion that the court at nisi prius had power to re-commit the report, to the end that an assignment might be made in accordance with law, the same as it has power to re-commit the report of commissioners appointed to make partition, for the correction of errors in their prior proceedings. Ware v. Hunnewell, 20 Maine, 291. One would virtually be a new assignment, as the other would be a new partition.

The tenant complains that by this proceeding he was deprived óf a voice in the selection of the commissioners, the same as at the first assignment. The answer is that the report was re-committed to the same commissioners, one of whom had been selected by the tenant. They were to act by virtue of their original appointment, and under their original oaths. But were it otherwise, the complaint of the tenant is unfounded, because it appears by the return of the officer that the tenant did select one of the commissioners, in this proceeding, and as a matter of extra precaution probably, the commissioners were sworn anew.

II. The tenant further complains that it should appear from the report of the commissioners, or from the officer’s return, that they set out to the demandant as dower, such part of the land as would produce an income equal to one-third part of the income which the whole estate would now produce, if no improvements had been made upon it since the demandant’s decree of divorce. Carter v. Parker, 28 Maine, 509.

But the commissioners did set out the parcels described in their report to the demandant, “as and for her dower,” and this has been, held a sufficient assignment. Skolfield v. Robertson, 88 Maine, 258. In this latter case the court said: “The term dower is one very well understood by laymen; and when the appraisers set out a part of the tract, as and for dower, the necessary implication follows, that they adjudged it would produce one-third of the income of the whole lot subject to dower.”

III. Finally, the tenant complains that the writ of seizin gave the commissioners no directions whatever. This was not necessary. The writ directed the officer to cause the demandant’s dower “ to be assigned and set out to her by three disinterested persons to be appointed by the plaintiff, defendant and officer as in the levy of an execution on land.” The duties of such commissioners are prescribed by law, and it would be manifestly inconvenient, not to say impossible, to incorporate them in the writ of seizin. There certainly can be no greater necessity for such directions in a writ of seizin, than there is for directions to appraisers in a writ of execution.

Exceptions overruled.