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148 Mass. 501

Firth v. Haskell

Massachusetts Supreme Judicial Court

Decided February 27, 1889

Massachusetts Supreme Judicial Court · decided 1889-02-27

<p>Sale of Land on Execution — Officer's Return.</p> <p>Land was duly levied on and sold, and the deputy sheriff making the sale, after delivering the deed, which was duly recorded, prepared a certificate of his doings, and died seven years later leaving it unsigned and not returned into court. Soon after his death, the sheriff of the county, who was a deputy sheriff at the time of the issue of execution and the sale, completed the return. Held, that the validity of the levy and sale was unaffected by the delay in making the return, and that the officer completing it was duly authorized to do so under the St. of 1885, c. 125, § 1.</p>

Relies on Walsh v. Anderson

Good law ✅— No negative treatment on recordhow we know

Decided 1889-02-27

How this case has been cited

Cited by 5 later decisions — most recently May 1994

5 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Knowlton, J.

¶1When an execution is levied by set-off upon real estate, the execution itself, with the officer’s return upon it, duly recorded, is the only competent evidence of the title acquired by the creditor. Pub. Sts. c. 172, § 22. When a levy is completed by a sale, a deed is given by the officer, which must be recorded within three months, and the return of the execution is of less importance. Pub. Sts. c. 172, § 28. Indeed, it is held in some States, that the title of a purchaser at a sale upon execution rests upon a judgment and execution which authorize the sale; that it cannot be affected by mere irregularities of the officer ; and that a return of the execution is not necessary to protect the purchaser’s rights.

¶2But in this Commonwealth it has been decided that a return of the execution is essential to the validity of such a sale. Walsh v. Anderson, 135 Mass. 65. This return may be made a long time after the levy, and it will relate back to the time named in the writ. Prescott v. Pettee, 3 Pick. 331. Welsh v. Joy, 13 Pick. 477. Walsh v. Anderson, 135 Mass. 65.

¶3The Pub. Sts. c. 171, § 54, and the substituted St. of 1885, c. 125, § 1,* are applicable to this case. The officer who made the sale died without fully performing his official duty. He prepared a certificate of his doings, but he left it unsigned, and he failed to return the execution to the court. The officer who *504returned it was one “ who might by law have served the execution if originally delivered to him.”

¶4If rights of third persons can be affected in any case by mere lapse of time between the service and the return of an execution upon which real estate is sold, they were not in this case.

¶5 Judgment affirmed.

¶6 This statute is as follows:

¶7“ Section 1. When an officer has begun to serve an execution, and dies, or is incapable of completing the service and return thereof, the same may be completed by any other officer who might by law have served the execution if originally delivered to him; or in case of sickness or absence, the judgment creditor or the officer who began to serve the execution may delegate any other officer who might by law have served the execution if originally delivered to him temporarily to act for him during said sickness or absence. If the first officer has not made a certificate of his doings, the second officer shall certify whatever he finds to have been done by the first officer, and shall add thereto, a certificate of his own doings, whether the same be in part or wholly completing the service.

¶8" Section 2. Section fifty-four of chapter one hundred and seventy-one of the Public Statutes is hereby repealed.”
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