Hamant v. Creamer , 101 Me. 222 ( 1906 )

Powers, J.

Appeal by the defendant in a bill in equity, brought to remove a cloud upon the plaintiff’s title to certain real estate in Waldoboro. By the decree the plaintiff was enjoined from asserting any title to, and ordered to release to the plaintiff all his interest in two third parts of the premises. The evidence is not reported, but instead thereof the facts found by the justice who heard the case, and which, as far as material to the grounds relied upon to sustain the appeal, are as follows :

“At the October term of this court, 1903, for Lincoln County, and on the third day of November, 1903, a divorce from the bonds of matrimony was decreed to Etta M. Creamer from her husband, Alvin Creamer, and there was decreed to her in addition to one third' interest in the real estate of said Alvin Creamer, that instead of alimony said Alvin Creamer should pay her the sum of four hundred dollars within thirty days from the date of the decree. In default of payment, execution to issue therefor. The libel for divorce was inserted in a writ of attachment, on which real estate was attached on March 13, 1903. Payment of the four hundred dollars not being made, execution issued on the tenth day of December, 1903, in which the officer was commanded to collect interest from the date of the decree, instead of from thirty days thereafter, the time of payment provided therein.

Upon the execution the officer seized, on December 14, 1903, the whole of the estate described in the bill, instead of two third parts thereof owned by Alvin Creamer, as of the date of the attachment, the lien of which had expired before the execution was issued or the seizure made. Under this seizure the officer proceeded in accordance with the statute to advertise and sell the estate, and did sell the whole land on the eighteenth day of January, 1904, to the complainant, and gave him a sheriff’s deed of the same,. No objection is made to the formality of these proceedings, leading up to the sale, except that he sold the whole when he should have sold two third parts. The amount for which it was sold was four hundred and thirty four dollars, the whole of which the officer applied in satisfaction of the execution and costs of sale. This included two dollars interest for thirty days, erroneously directed in the execution to be collected, but less than one per cent of the decree, and also included illegal fees of the officer in making the sale, to the amount of fourteen dollars and eighty-eight eeuts.

At the date of the attachment Alvin Creamer owned the whole of the land described, and on Dec. 7, 1903, he owned two third parts in common and undivided of the same, the other third being then owned by his former wife Etta. On that day he conveyed by quitclaim deed his two third parts to his brother Frank N. Creamer, this defendant.

Since the sale to Uamant he has been in possession of the premises.

I find that Alvin Creamer gave the deed to the defendant for the purpose of preventing his former wife realizing upon her judgment, and the defendant knew of this purpose and participated in it, and that the conveyance was not bona fide, but was fraudulent and void as to Etta M. Creamer, and that on December 14, 1903, two third parts of said estate were liable to seizure and sale on her execution.”

The objection that the sale was of the whole laud instead of two thirds cannot be sustained. The sale of the whole eouveyed all the right, title and interest, of every nature, that the debtor had. R. S., chapter 78, section 32; Millett v. Blake, 81 Maine, 531.

As to illegal fees of the officer, it is settled that a levy by appraisement is not avoided because the officer has taxed, and caused to be satisfied in the extent, fees not authorized by law. Wilson v. Gannon, 54 Maine, 385. With much greater force does the principal apply to a levy by sale. In the latter case, whatever the amount of the judgment and costs of levy as taxed, the whole interest of the debtor is sold, and the officer must account to him for any surplus.

This brings us to the final and principal contention of the defendant, that there is a fatal variance between the execution and the j udgment on which the plaintiff claims it was based, in that the officer was commanded to collect interest from the date of the decree, instead of from thirty days thereafter. At the date of the execution R. S. 1883, chapter 82, section 142, was in force, which provided that interest should be collected from the time of judgment or payment, and the form of the execution be varied accordingly.

Whether the error in the execution renders it void or only voidable depends upon whether it is amendable. Every valid execution must be founded upon a judgment. If there is sufficient in the execution, taken in connection with other facts, to identify it with the judgment offered in evidence to support it, then it ought not to be avoided, and the proceedings based upon it invalidated, by an error of an officer of the court. There is neither justice nor reason in visiting the consequences of such mistakes upon either an innocent creditor or purchaser, and the great weight of authority is in accord with this view.

“When an execution can properly issue, a mistake made by the officer in performing the duty of issuing it, is necessarily a mere error or irregularity. It is, however, necessary that an execution should have a judgment to support it; and that it should appear from the execution what judgment is intended to be enforced. The reason why the description of the judgment is inserted in the writ is, that the officer may know what he is to enforce, and that the writ may, by inspection, be connected with the authority for its issuance. When a sale has been made by a sheriff, we apprehend the purchaser need show in support of his title, nothing except a judgment, an execution thereon, and a sale and conveyance under such execution. When the execution is offered in evidence, it may vary from the judgment in some respects, and correspond with it in others. The question, then, before the court is, Did this execution issue on this judgment? If, from the whole writ taken in connection with other facts, the court feels assured that the execution offered in evidence was intended, issued and enforced upon the judgment shown to the court, then we apprehend that the writ ought to be received and respected.” Freeman Ex. section 42. When sufficient appears upon the face of the execution to connect it with the judgment, a variance in amount has been frequently disregarded, or an amendment allowed to make the execution conform to the judgment. Idem sections 42 and 67; Bissell v. Kip, 5 Johns, page 100, and cases there cited. Jackson v. Ten Eyck, 4 Wend. 462; Jackson v. Page, 4 Wend. 584; Avery v. Bowman, 40 N. H. 453 ; Lewis v. Lindley, 28 Ill. 147 ; Durham v. Heaton, Idem 264; Becker v. Quigg, 54 Ill. 390 ; Corbin v. Pearce, 81 Ill. 461; Hunt v. Loucks, 38 Cal. 372 ; Dewey v. Peeler, 116 Mass. 135; Chesebro v. Barme, 163 Mass. 79; Berry v. Gates, 175 Mass. 373; Note to Kip v. Burton, 101 Am. St. Rep. 550; 17 Cyc. 1044. In these cases executions calling for from one cent to one thousand dollars more than the judgments, have been amended, or treated as amended, and the sales under them sustained.

Turning now to the decisions in this state we find that in Smith v. Keen, 26 Maine, 411, the execution recited the recovery of a judgment, for $600 damages more than was shown by the record, it was held that such a clerical error was amendable, and a levy under it, for the correct amount of the judgment was sustained. The execution in Corthell v. Egery, 74 Maine, 41, called for an insufficient balance as still due on the judgment. It was held to be amendable and the levy valid. In Coffin v. Freeman, 84 Maine, 535, Ihe officer was commanded to collect one dollar more than the judgment. The court there said: “If this does not come within the provision of the statute as an em>r of the officer, it must fall under the principle of the decisions above cited respecting the taxation of excessive fees by the officer. It does not avoid the levy. The creditor was not responsible for the error, and there was no intentional wrong on the part of any one.” Cases in which' the amount, which the officer is commanded to collect, is less than that called for by the judgment, stand upon the same principle. The question is one of identity between the judgment described in the execution and that shown by the record, not the amount of debtor’s property which has been taken. In one case he .has parted with nothing; in the other he has a full and adequate remedy, either at law or equity as the case may be. In either case he has suffered no harm.

So far as Prescott v. Prescott, 62 Maine, 428, is opposed to the principle of these cases, it must be regarded as unsupported by the weight of authority and not in harmony with the rule which permits amendments to mesne or final process in the interests of justice. Certainly in the case at bar the fraudulent grantee of the debtor stands in no better position than his grantor to object to the exercise of this salutary power for the protection of an innocent purchaser. Jackson v. Esten, 83 Maine, 162. The debtor has his remedy against the clerk, or against the creditor, to recover the excess. Avery v. Bowman, supra; Hunt v. Loucks, supra. The rights of no innocent third party are involved; and no one can be harmed by an amendment of a trifling clerical error on the part of an officer of the court. In a writ brought upon the judgment in Prescott v. Prescott setting out the debt as $600 and the whole amount including costs as due at the date of its rendition, instead of $600 and costs payable in twenty days after that date, it was held that the error was amendable. Prescott v. Prescott, 65 Maine, 478. We are unable to perceive any good reason why final as well as mesne process may not be amended, when no rights of innocent third parties have intervened except those which will be protected by the amendment. An execution is a judicial writ. If the court can permit amendments, to correct the mistakes made by parties and their attorneys in describing the judgment, it ought to be able to do so for the purpose of correcting the same mistake of its own clerk. “At the present day the power to amend executions so as to correct clerical misprisions, is universally conceded and frequently invoked.” Freeman Ex. section 63. There can be no substantial distinction between an error in the command to an officer to collect two dollars too much interest, and one to collect a like excess of debt or of costs.

In Prescott v. Prescott, 62 Maine, 428, it is said that no motion was made for an amendment or correction of the execution. It is, however, well settled that the court of its own motion may order such amendments to be made. Hayford v. Everett, 68 Maine, 505; Caldwell v. Blake, 69 Maine, 458; and that in collateral proceedings where such amendments are allowable, they will be treated as actually made. Corthell v. Egery, 74 Maine, 41 ; Freeman Ex. 71; Dewey v. Peeler, 161 Mass. 135.

Applying the foregoing principles to the case at bar, the only variance relied upon is that the officer was commanded to collect interest upon the amount of the judgment from the date of judgment, U. S., chap. 84, section 158, instead of from the time when it was payable as required by the statute then in force, a difference of two dollars. For aught that appears the execution recited correctly the name of the plaintiff and that of the defendant, the court which rendered the judgment and the term at which and the day on which it was rendered, the amount of the judgment and the time when it was payable. The bill charged and the answer did not deny that the execution issued on a judgment recovered in this court by Etta M. Creamer against Alvin Creamer on Nov. 3, 1903. There is no suggestion in the case that there was any other judgment between these parties. The findings of fact are equivalent to a finding that the execution issued on the judgment which was introduced to support it. It does not appear but that in its minutest detail the execution describes the judgment with absolute accuracy. The variance was in the command to the officer, which was not a part of the description of the judgment. There is nothing whatever to show that the judgment, execution and sheriff’s deed were not successive links and parts of the same proceeding. “ The burden to show error falls upon the appellant. He must show the decree appealed from to be clearly wrong otherwise it will be affirmed.” Proctor v. Rand, 94 Maine, 313.

There can be no question that the execution was issued upon a valid judgment. The clerical error of the officer of the court is amendable. When it is in the furtherance of justice the power to amend should be exercised with a liberal hand. As between a fraudulent grantee and an innocent purchaser at an execution sale the court will amend its process to protect the latter. The equities are all with the plaintiff. Being in no fault himself, he should not be made to suffer by a mistake of the officer of the court for which he is in no way responsible, and which may be amended as between the original parties and those standing in no better position. The plaintiff is the only innocent third party affected, and his rights will be protected by the amendment. Such amendment may be made by the court of its own motion, and in collateral proceedings will be treated as actually made.

Decree below affirmed with additional costs.

Execution to issue therefor.