Citation Numbers: 74 Me. 178
Judges: Appleton, Daneoutii, Peters, Symonds, Walton, Yergust
Filed Date: 12/7/1882
Status: Precedential
Modified Date: 9/24/2021
It is admitted that the title to the land in. question was originally in the plaintiff and so remains unless, taken from him by a levy in fayor of Haynes H. Harden, under-whom the defendant claims, and the only question is, as to the validity of that levy.
The first objection is, that the certificate of the oath administered to the appraisers was not made upon the back of the execution, but on a separate piece of paper and attached to it. This cannot be considered a compliance with the statute under-which this levy was made and as it now is. Under the statute of 1821, under which the decision in Phillips v. Williams, 14 Maine, 411, relied upon in the argument, was made, no certificate, from the magistrate administering the oath was necessary. The; return of the officer that he had caused the appraisers to bo sworn was the sufficient and only evidence required of that fact. In the revision of 1841, c. 94, § 4, it is provided that the appraisers, shall be sworn before a justice of the peace, "and such justice shall make his certificate on the back of said execution, of his. having administered such oath.” This provision, enlarged so as. to authorize the officer to administer the oath, is continued to the present time. In E. S., c. 76, § 2, it reads, "and a certificate of the oath shall be made, stating the date of its administra
But this provision may be considered as directory to the officer rather than vital to the levy. .The oath is the essential thing. It is necessary, to authorize the appraisers to proceed, as much •as the execution itself. It is proper therefore, that the evidence •of it should be upon and a part of the execution, especially as that is the most certain way of preserving it., Possibly as against •a subsequent attaching creditor, or bona fide purchaser it may be the only legitimate evidence. But in this case it is the debtor ¡himself who seeks to take advantage of the omission. He has •suffered no harm, for the evidence is abundant that the oath was •duly administered and all that was necessary to secure his rights 'in this respect was done. On the other hand so far as appears the defendant is an innocent purchaser from him in whose behalf the levy was made. The levy was duly recorded and upon that record he had a right to rely. It does not appear that the record disclosed any such omission as is now claimed. Under these circumstances it would be proper to allow an amendment if one were needed. The lapse of time is no objection, for it does not
The other two objections to the levy may properly be considered as one. It is agreed that by the officer’s return and certificate, it appears that George G. Allen was chosen and sworn as one of the appraisers, while their return is signed by G. E. Allen. The return of the officer and of the appraisers, which are admitted to be correct, must show that in fact the same man, who acted, was properly chosen and sworn. This is the only inference which can be drawn from the papers, and no harm can, therefore, have resulted to any one on account of the clerical mistake in the initial of the middle name. This cannot avail the plaintiff. Boynton v. Grant, 52 Maine, 220.
Judgment for defendant.