Citation Numbers: 16 Me. 374
Judges: Shepley
Filed Date: 7/15/1839
Status: Precedential
Modified Date: 9/24/2021
The opinion of the Court was drawn up by
It appears from the bill, answer, and proofs, that one Paul Blaisdell on the eleventh day of April, 1834, was seized of a tract of land containing about thirty-five acres, on the western end of which was a granite quarry.
The respondents barfing an execution against him, placed it in the hands of an officer, who on that day caused appraisers to be selected and sworn to satisfy the execution by a levy upon the land;
One of the plaintiffs was present and knew the proceedings on the twenty-ninth, and on that day took a conveyance of Blaisdell’s right to redeem the quarry ; and on the twenty-seventh day of April, 1835, tendered the amount of the debt with interest, to redeem the levy, which the creditors refused to receive, alleging, that the right of redemption had been forfeited by lapse of time. The bill is brought to redeem, and to have the respondents’ title by the levy released.
Since the hearing, on petition of the officer to the Court of Common Pleas, he has been allowed to amend his return, and the amendment has been made, stating the appraisement to have been made, the extent completed, and seizin given on the adjournment to the twenty-ninth of April.
A motion having been submitted for leave to amend, the right to permit an amendment was argued at the hearing. There being no third party interested, the amendment is justified by the case of Howard v. Turner, 6 Greenl. 106. The amendment was refused in the case of Freeman v. Paul, 3 Greenl. 260, not because the return was not amendable, but the Court declined the exercise of an admitted power to enable a party to create a forfeiture. In this case, so far as it may be effectual, it is to prevent a forfeiture.
The stat. c. 60, sec. 30, allows the debtor or his assignee to redeem the levy, “ within the space of one year next following the extending execution thereonand the question arises, when the
One of the respondents was present and knew that the quarry was first selected, and that it was appraised and seizin delivered on the twenty-ninth oí April; and although the appraisers’ return bears date on the 11th of April, one of them testifies, that he objected to the date at that time, and was informed by the creditor, that it would make no difference, and that he wished it to bear that date to save an attachment. No attachment of the land appears to have been made. There is therefore no occasion for a fiction to preserve an attachment, and the proof, from the amended return and other testimony, may be received, that the extent upon the quarry did not take place until the twenty-ninth of April.
It would be inequitable to allow a forfeiture to be created by a date not according to the truth, and especially in favor of one at whose suggestion the erroneous date appears to have been made.