Wilcox v. Emerson

Dureee, J. This is an action of trespass and ejectment, *272 which is heard by the court on law and fact, the jury trial being waived. The plaintiff claims the land in suit, as a purchaser at an execution sale, and produces in evidence, in support of his title (besides other testimony), the execution with the officer’s return thereon. The return, however, does not show an advertisement of the sale published for three weeks previous to the sale, as required by Rev. St. ch. 195, § 11; and the plaintiff offers to prove a compliance with the statute by evidence aliunde, though he claims that the return is sufficient as it stands. In Maine, Monroe v. Reding, 15 Maine, 153; Jackson v. Woodman, 29 Maine, 266; New Hampshire, Mead v. Harvey, 2 N. H. 495; Libbey v. Copp, 3 Ibid. 45; Avery v. Bowman, 39 Ibid. 392; Vermont, Cleveland v. Allen, 4 Vt. 176; Sleeper v. Newbury Seminary, 19 Vt. 451; Massachusetts, Williams v. Amory, 14 Mass. 20; Litchfield v. Cudworth, 15 Pick. 23, 28; and Connecticut, Metcalf v. Gillet, 5 Conn. 400; Bissell v. Mooney, 33 Conn. 411, it is held that where the land of one person is transferred to another under an execution, it must appear by the officer’s return, either expressly or by necessary inference, that he has proceeded according to the statute, and that, if it does not so appear, the defect cannot be supplied by evidence aliunde. In the unreported case of Hazard v. Clegg, decided by this court a few years ago at Newport, the rule declared in these cases was . recognized as the law of this state. Several cases, however, have been cited for the plaintiff, in which it has been held that it is not necessary for the purchaser at an execution sale, in support of his title, to do more than prove the judgment and levy, and produce the sheriff’s deed, — the order of proceeding prescribed by the statute being considered as simply directory to the officer. In this view, the title of the purchaser is not affected even by the entire omission of the officer to make any return. We are not prepared to adopt this view. We think the power of the officer to transfer the estate, being derived from the statute, can be validly executed only in the manner prescribed by the statute; and that if the officer omit to set up the notifications and publish the advertisement as required, his deed (unless it can be and is aided by a false return) will be ineffectual to pass the title. The officer’s compliance with the statute must also be proved by the person claiming under his deed; it will not be presumed. Can this *273 proof be made otherwise than by the return ? The service of the execution is an official act, and the return is the official record of that act .required to be made by the officer as a part of his duty. Then, is not such record the proper, and the only proper evidence that, in the service of the execution, the statute has been duly observed ? Injustice, doubtless, may arise, if a defective return can in no case be aided by testimony aliunde; as injustice may sometimes, doubtless, arise from the rule that the acknowledgment of the deed of a married woman can only be proved by the magistrate’s certificate ; but on the other hand, it is to be remembered that if testimony aliunde were to be admitted, its admissibility would have a tendency to introduce the uncertainties and provocations to litigation which are the natural results of making the titles of real estate dependent upon parol testimony. We are of the opinion that the rule of the New England States, recognized by this court in Hazard v. Clegg, is upon the whole the more consonant with legal principle; and we therefore decide that the return as it stands is defective, and that the defect cannot be supplied by testimony aliunde. Judgment accordingly.