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51 Mass. 62

Bates v. Willard

Massachusetts Supreme Judicial Court

Decided September 15, 1845

Massachusetts Supreme Judicial Court · decided 1845-09-15

<p>In the levy of an execution, the real estate levied on was described as “ all the land, supposed to be about 200 acres, that is or can be overflowed by the water raised by the great dam, at its present height, and all the real estate, rights and privileges conveyed to” the execution debtor, “ by deeds from the following persons, recorded in the registry of deeds, as follows, to wit,” among others, “ D. D. recorded book 306, page 138: ” On that book and page of the registry were two deeds from D. D. conveying different parcels of land. Held, that the levy was not, for that cause, void for uncertainty 3 but that the land levied on included that which was described in both deeds, or in .one of them only, according to the further description of the land in the levy.</p> <p>A return-of a levy of an execution stated an appraisement and setting off of a certain tract of land by metes and bounds 3 “ also all the land, supposed to be about 200 acres, that is or can be overflowed by the water raised by the great dam across P. H, Brook, situate on the tract of land first above described, at its present height, with the right of flowing all such land, and of keeping said dam at its present height, and all the other rights of flowing, and other privileges and appurtenances belonging to said dam and land, and all the real estate, rights and privileges conveyed to the ” execution debtor by certain deeds referred to 5 u also the right and privilege of raising the dam across said P. H. Brook, connected with the mill owned by M. L. in the year 1836, being the dam next above the great dam aforesaid, to the height of four feet,” &c., u and the right, now and at all times, to maintain, repair and rebuild said dam, to the height aforesaid,” &c. 5 u also, all the land, supposed to be about 150 acres, that is or can be overflowed by the water raised by the said L. dam at its present height, with the right of flowing all such land, and of maintaining said dam at its present height, and all other the rights, privileges and appurtenances belonging to said dam and land, and all the real estate, rights and privileges which were conveyed to the ” execution debtor, by deeds from certain persons named: The whole of the estate, as above described, with all the privileges and appurtenances thereunto belonging, were appraised and set off at a single sum: In an action to try the validity of this levy, it was objected that the levy was invalid, because it appeared that part of the estate therein described was appraised twice. Held, that this objection was not apparent on the return $ that the various forms of describing the property levied on were adopted with a view to pass the entire estate of the debtor, as his interest in the estate might afterwards be more fully disclosed ; and that the objection to the levy could not prevail.</p> <p>t is sufficient, in the levy of an execution on a debtor’s right and privilege to raise a dam, and overflow, &c. the land of A., to set off such right and privilege, “ subject to the conditions, exceptions and reservations named in the deed of said A.” to the execution debtor, without specifying those conditions, exceptions and reservations.</p> <p>When appraisers certify that real estate, which is seized on execution, cannot be divided without damage to the whole, and they therefore set off to the execution creditor a fractional part, to be held by him in common with others, and the levying officer makes his return accordingly, the court must hold, in an action against the officer for making a defective levy, that it was necessary to set off the estate in that manner.</p> <p>When an officer, in his return of the levy of an execution, states that he delivered to A., the agent of the execution creditor, seizin and possession of the premises levied on, such creditor, in an action against the officer for a defective levy, cannot give evidence that A. was not his agent.</p> <p>An officer made a return of the levy of an execution on a certain fractional part of real estate described in the return, stating that he had delivered seizin and possession thereof to the execution creditor, and thereupon deposited the execution, with the return indorsed thereon, in the office of the register of deeds, for record : Finding that this levy had been, by mistake, made for too large a sum, and was therefore invalid, the officer applied to the register to give back to him the papers • out the register declined so to do, before they should be extended on the record : The officer thereupon, before the time when the execution was made returnable, and before it was returned into the office of the clerk of the court, procured the appraisers, whom he had employed in the first levy, to make a new appraisement and setting off, and he made a new and correct return, stating a levy on a smaller fractional part of the same real estate, and also stating that he had delivered seizin and pi ^session thereof to A., the agent of the execution creditor 3 and he annexed said return, by permission of the register, to the execution then lying m the register’s office, and therein declared that he meant and intended it as the true and only return of his doings in regard to the levy of said exepution: This return was extended on the record, by the register, immediately after the record, which he had, ir the mean time, made of the execution and former levy, and the officer then drew across his original return a black line, without the register's consent: No adverse right to the estate levied on was acquired by any third person, between the times of depositing the first and second returns in the register's office, for record. Held, in an action by the execution creditor against the officer, for an alleged default in not making a valid levy, that the officer had authority to make an amended return of, his levy; that this amended return was valid and effectual; and that the execution creditor had no cause of action against him.</p>

Decided 1845-09-15

Dewey, J.

¶1The right of the plaintiff to maintain this action depends upon the validity of the levy of his execution * upon the real estate of the Dudley Woollen Manufacturing Company, made by Ivers Phillips, a deputy of the defendant. Various objections were taken to this levy, several of which, however, present no questions of difficulty, but' have been suggested with a view, as we suppose, of having a judicial decision upon all questions that might by possibility hereafter arise thereon.

¶21. It is said that the levy and return are void for uncei tainty in the description of the estate set off. It is supposed to be so in this, viz. that the reference to certain deeds, recorded in the registry, is uncertain; there being found recorded in book 306 of the registry of deeds, page 138, two deeds to Dyer Davis ; leaving it uncertain to which the reference in the return is intended to apply. To this objection, it seems to us, the obvious answer is, that if both deeds are included in the description, and the land described in both deeds is really embraced in the return, then the levy and appraisement must include both; if otherwise, then it will include only the land embraced in such deed as is indicated in the reference. In the introductory part of the clause in the return, these sources of description are referred to as “ deeds,” not a “deed,” and are broad enough to include two deeds of Dyer Davis, if the whole description of land set off, taken together, does not exclude one of them, and thus restrict the reference. Which is the true construction of the levy, it is not necessary that we now decide

¶3*782. It is next objected, that the appraisers have appraised the same land twice, as appears from the double descriptions, and the setting off of the land, and also the right to flow the same land; and also that it does not appear whether the levy included the fee of the land covered by the waters of the Earned ' Pond, or merely the right to flow the same. But, as it appears to us, there is no such case of uncertainty in this respect, nor any sufficient reason, apparent upon this return, for adopting the suggestion of the plaintiff that the same estate has been twice estimated in the appraisement. Taking the return altogether, it amounts to no more than this; that the interest taken has been stated in these various forms of description, with a view to pass the entire estate of the debtors, under either form, as that interest might thereafter be more fully disclosed'; and it is sufficient that it is broad enough to cover all the interest of the execution debtors; and so far as the fee is taken, it is to be assumed that the appraisement was for the value of the land, and not for an easement in it.

¶43. It was also objected that this levy was void, because the right of flowing Morris Larned’s land, and the right to erect a dam, &c. are set off subject to an incumbrance or charge, viz. paying all damages caused by flowing such lands, without reciting what the amount of this charge is. It does not , seem to us that this part of the levy presents the case of a deduction for an incumbrance requiring the statement of the amount of such incumbrance, and the sum deducted therefor. The appraisers set off certain estate, which was held by the judgment debtors, by a deed from Morris Earned to said debtors, subject to certain conditions of paying all damages occasioned by the flowing of this land; and they set it out as subject to all such conditions, exceptions and reservations, in this respect, as are stated in the deed of Earned to the debtor ; and this, we think, they might well do.

¶54. It was insisted that the levy was invalid, because it was manifest that the estate might have been set off in severalty, without injury to the whole. But this position cannot be maintained ; and upon this return of the officer, and certificate *79of the doings of the appraisers, we must hold it to have been necessary to set off this estate in proportionate parts, and not in severalty.

¶65. Having disposed of what may be termed the minor objections taken to this levy, we come to the objection much more strongly pressed, viz. that it is invalid, inasmuch as the original levy and appraisement tvere for a sum larger than the amount of the execution and all costs of levying the same, and that a return of the doings of the officer and appraisers having been once certified, and the same, with the execution, filed for record in the office of the register of deeds, it was incompetent for the officer to change his return of his doings on such execution, or, by any new certificate or amended return, give effect to a defective levy.

¶7The validity of the levy of the plaintiff’s execution, as it seems to us, must depend upon the effect to be given to the amended return of the officer, recorded in the registry of deeds on the 6th of March 1843. Giving full effect to the decisions of this court, no legal title to the estate set off to the plaintiff could have vested in him, under the return and certificate first made by the officer and filed, with the execution, for record in the office of the register of deeds on the 25th of February, 1843, as upon the face of it it was clearly bad, the levy being made for a greater sum than the amount of the execution and costs of levy. Pickett v. Breckenridge, 22 Pick. 297. The question then arises, how far it was competent for the officer to amend his first certificate, and to what stage of the proceedings does this right to amend continue ? The plaintiff insists that the power of the officer thus to amend ceases with the filing of the execution, and his certificate of levy, with the register of deeds for record. The defendant insists that it is competent to correct and amend the return at any time before the return day of the execution, and before the same is actually returned to the clerk’s office.

¶8We are aware that there has been some discrepancy in the course of the numerous decisions upon the question of amendments of returns of officers, and how far they are to be allowed *80when they may affect the rights of third persons. Certain ’t is, that the doctrine for a time supposed to prevail, viz. that no amendment of officers’ returns would be allowed, where the interests of third parties might be affected, has been greatly modified, if not substantially overruled, in the later cases of Haven v. Snow, 14 Pick. 28, and Day v. Johnson, 17 Pick. 106. It is not necessary, however, particularly to limit and define the extent, or consider the effect, of amendments made under leave of this court. This case presents no such question. The return, such as it is, was the act of the officer, and made while he was the lawful holder of the execution, and before the return day. Thé case of Welsh v. Joy, 13 Pick. 482, is a strong authority to show that, in all cases, unless it be the case of an execution levied upon real estate and left with the register of deeds for record, the return upon an execution does not become a matter of record, and that the officer does not need the permission of the court to amend such return, before it has been returned to the clerk’s office.

¶9A familiar principle, now well settled, and which is in truth the great principle upon which the defence to this action can be maintained, if maintained at all, is, that full force and effect are to be given to the returns of sworn officers, made in the course of their official duty. Such returns are said to import verity, and are not collaterally to be, controverted. The returns of sheriffs and their deputies are peculiarly of this character, and in questions arising between other parties are conclusive. Taking this rule, and giving it full force and effect, the amended return of the officer is the only true and accurate return of his doings in relation to the levy of the plaintiff’s execution upon the real estate of the debtors, under the seizure of December 15th 1842. The officer, in his return, declares, in direct terms, that the amended statement is the only true statement of the amount levied, of the fractional parts set off to the creditor, and of his doings on the execution. This alone is the return indorsed on the execution at the time of its return to the clerk’s office, and is the source of the plaintiff’s title to the land set off on his execution. The *81return of the execution to the clerk’s office, with a certificate at large-, by the officer, of his doings thereon, as all agree, is essential to the validity of a levy. When thus returned, the whole proceedings become a matter of record, and copies of such levy, certified by the clerk of the court, are the highest evidence of the levy. The question then arises, whether this return, thus indorsed on the execution, is to have full force and effect, or whether the title of the plaintiff to the premises set off has been lost by reason of the making of an erroneous certificate of the doings of the officer and appraisers, in the appraisement and levy of the execution, and placing the execution, and such erroneous certificate, in the office of the register of deeds for registry.

¶10Without expressing any opinion as to cases of adverse rights acquired by purchase, or by attachment or levy made, between the 25th of February and the 6th of March 1843, (the period that elapsed between the time of entering with the register, for record, the first certificate and return on the execution, and that of the amended return,) none such being shown or suggested, we see no sufficient objection to the proposition, that as regards the debtors, and all others who have not acted upon the faith of the first return, the certificate of the doings of the officer and appraisers was amendable before the return day of the same, and before the same was actually returned ; that the same might be amended according to the truth; that such amendment, setting forth the proceedings under the original seizure, has reference to such seizure, and being duly recorded in the office of the register of deeds within three months, as required by law, and the execution being duly returned to the clerk’s office, with such amended return, as the true return and certificate of the levy and appraisement, the levy, as set forth in such amended return, may have full force and effect, and will not be defeated by previously filing in the office of the register of deeds, for record, the execution, with an erroneous certificate of the officer of his doings indorsed thereon.

¶11It was strongly urged upon us by the’ counsel for the *82plaintiff, that the Rev. Sts. c. 73, $$ 20, 21, have limited the right to amend the return of the levy to a period anterior to the recording of the same in the office of the register of deeds. This statute seems to us to have been enacted with a view oí providing for cases of a character different from that before us It grants, in the cases specified in $19, the privilege of full and entire waiver of the levy, with authority to satisfy the entire execution in any other mode, at the election of the judgment creditor. The case before us, as stated in the amended return, is that of perfecting, not that of waiving, the original levy. It is that of correcting and truly stating the original levy and appraisement, and not that of abandoning it and resorting to some other remedy for the satisfaction of the judg-r ment.

¶12Without deciding how far these provisions of $$ 19 and 20 are merely cumulative, and whether they do in fact restrict the creditor from exercising a right of waiver in a case where, independent of the statute, he might have waived his proceedings under a levy, it is sufficient for the present case to say, that these provisions of the statute do not reach the case at bar.

¶13 Nonsuit to stand.

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