Citation Numbers: 35 Me. 207
Judges: Wells
Filed Date: 7/1/1852
Status: Precedential
Modified Date: 9/24/2021
— This case, which has once been presented for consideration, and which is reported, 31 Maine, 120, appears to involve other questions not then raised. It is there stated, that the plaintiff’s writ against Simon J. Whitten, was directed • to a constable. But the case now shows, that it was directed to the sheriff or his deputies only, and not to a constable. The writ was duly served by the constable and
In the case of Hearsey v. Bradbury, 9 Mass. 95, where a motion was made to abate the writ, because it was served by a constable, although not directed to him, such omission was held to be a matter of form and amendable.
It is not denied, that Whitten appeared by counsel and answered to the action, and that the judgment may be good, but it is insisted, that the attachment is void. The attachment was made according to the commands in the body of the precept, and it appears to have been acquiesced in by the parties to the suit.
By the statute, c. 104, § 34, the constable was fully authorized to make the service. No objection is perceived to the service of a writ by a constable duly empowered, though it is not directed to him. He might not be obliged to make it, unless the precept was directed to him, but he may do the act without such direction, which being a mere matter of form cannot be necessary to give it validity. And by considering him as having power to obey the commands in the writ, though not directed to him, he made a legal attachment of the land. The lien created by it was preserved, by a levy duly made within thirty days from the rendition of judgment.
In the case of Adams v. Jewett, 1 Fairf. 426, the plaintiff did not request the officer to serve the writ as constable, but the direction to the constable had been erased, and it was directed to the sheriff or his deputy when delivered to the officer, who was both a deputy and constable.
The only question reserved for the opinion of the Court was, whether the entry of the action and taking judgment should be regarded as an acceptance of the service as constable. The officer was not authorized by the plaintiff to serve the writ as constable; if he had been, then he would not have been in any fault, and the plaintiff' would not have had any
The attachment of the land was made as the property of •Whitten, February 18, 1845. The defendant contends, that Pease, under whom he claims, had acquired previously a title to it. Whitten was the owner of three parcels of land. Two of them lay on the north side of “ north roadone contained a quarter of an acre, the other an acre and a half. Both of them were conveyed to him by Joseph Blazo, the latter in 1816, the former in 1826, which is the locus in quo. Whit-ten’s house, stable and store were on the lot containing the acre and a half. The third parcel, owned by Whitten, was on the south side of the “ north road,” was purchased by him of John Drown, and constituted the principal part of his farm ; he had a barn and shed on it.
■ Whitten conveyed to Pease, in October, 1843, “ a certain piece of land in Parsonsficld, being the farm on which said Whitten now lives, occupies and improves, and being the same lot of land I purchased of John Drown,” &c. By reference to the deed of John Drown, it would appear, that this parcel laid on the south of “north road, and therefore the locus in quo was not a part of it. But the defendant contends, that the locus in quo was a part of the farm, and that it is embraced in the description of the premises in this deed. The first inquiry which arises, is whether the evidence introduced shows it to have been a part of the farm. Robert T. Blazo testifies, that he is acquainted with the lot of land described in the writ, purchased by Whitten of Joseph Blazo in 1826, that Whitten afterwards built an office upon it for Noah Tibbets, which he subsequently occupied as an office, that it has been usually called the office lot, “ and has always been enclosed by a fence by itself,” and that the office was occupied after Tibbetts left it, by different tenants as a dwellinghouse, down to the time when Pease took his deed. He does not state at what period of time the office
The mortgage deed from Whitten to Dalton very clearly describes the lot conveyed by JBlazo in 1816, and it appears ( by the evidence before mentioned, to have been entirely distinct and separate in its use from the locus in quo.
The mortgage deed from Whitten to Mclntire and Tibbetts, in 1831, among other lands, also conveys “the farm, the said Whitten now occupies and lives on, situate on the north road in said Parsonsfield,” &c. When this deed was made, and before and since, according to the testimony which has been referred to, the locus in quo did not constitute a part of the farm, and consequently it could not be embraced within the description of the premises, which the deed purports to convey.
The defendant does not appear to have had any title to the premises in controversy, of an earlier date than the plaintiff’s attachment. Defendant defaulted.