Hobart v. Bennett

Walton, J.

We will answer the questions presented for the determination of the law court, in the order in which they are stated in the report.

1. Eeceivers of savings banks may commence suits in the name of the bank, or in their own names, as receivers. It is immaterial which. Suits may be so commenced by the receivers of banks of discount, and no reason is perceived why the same rule should not apply to the receivers of savings banks. K. S., c. 47, § 62.

2. If a writ is entered in court without any other service than the attachment of property, as. provided in Ii. S., c. 81, § 23, the attachment will not be held to have been abandoned or invalidated, although the order of notice on the defendant is not ■obtained or served till a subsequent term. The statute •authorizing notice in such cases contains no limitation as to the time within which the order shall be obtained or served, or that ■the attachment shall be lost if the order of notice is not obtained or served within a given time; and we do not think the court would be justified in fixing such a limitation. If such delays -cause inconvenience, the legislature, and not the court, must ■provide the remedy.

3. Amendments of officers’ returns, by which the title to 'property is to be affected, should be allowed with great caution. And in no case should such an amendment be allowed, unless 'the court can see clearly that it will be in the furtherance of .justice. The court does not see clearly that the amendment ¡proposed, in this case, (the effect of which would be to defeat ■the title of a savings bank and vest it in one who purchased of a •debtor pending a suit against him in which the property was attached,) would be in the furtherance of justice. Consequently, ■the amendment is not allowed. The officer’s return is conclusive ■evidence of the facts therein stated, and can not be contradicted. And in the application of this rule, it can make no difference whether the property sold by the officer on an execution is purchased by the judgment creditor or a stranger. Whoever the purchaser may be, in defense of his title he has a right to rely upon -the officer’s return as conclusive evidence of the facts therein stated. By " facts therein stated, ” we, of course, mean such facts only as relate to the doings of the officer, and are, therefore, properly stated in the return. The fact that he has given due notice of an intended sale, is one proper to be stated in a return, and his statement that he has given such notice, can not be contradicted. If the statement is false, the remedy of one thereby injured, is an action against the officer for a false return. The statement can not be contradicted for the purpose of defeating’ the title of one who purchased the property at a sale made by the officer, although the purchaser was the judgment creditor in the execution on which the property was sold. In this particular, we think he is entitled to the same protection as any other purchaser.

4. If a receiver improperly purchases property sold on an execution in favor of the estate which he represents, the proper remedy is to hold him responsible for the injury, if any, which the estate thereby sustains. It would be the poorest of all remedies to hold the purchase void, and thus, perhaps, lose to the estate both the property and the debt, to secure which, the purchase was made. In bidding off the equity of redemption which had been attached on the writ, the receiver probably did what he believed would be for the interest of the bank which he represented. But whether he acted wisely or unwisely, is a question that will not be considered in this suit. It is sufficient to say that the court declines to declare the purchase void.

5. A sale upon an execution of a right in equity to redeem a parcel of real estate, on which there are two or more mortgages, at the same time, and for a gross sum, is not illegal or void. So decided in Bartlett v. Stearns, 73 Maine, 17. The sale in this case was not, therefore, void on that account.

We have now answered all the questions of law presented in the report, and the entry must be,

Ouse to stand for trial on the questions of fact put in issue by the answer.

Peters, C. J., Danforth, Libbey, Emery and Haskell,, JJ., concurred.