Banister v. Higginson

After a continuance for advisement, the opinion of the Court was given by Weston C. J. The levy made in July, 1807, upon the demanded premises, in behalf of the tenants, is very clearly bad, it no where appearing, either in the return of the officer, or the accompanying documents, that the appraisers were appointed in conformity with the statute. The requirements of the law upon this point, are too important to he disregarded ; and there being no legal evidence of a statute transfer of title from the debtor to the creditors, the fee remained in the former unaffected by the levy. Parol proof has been offered, that the appraisers wmre appointed according to law, and a motion has been submitted, in behalf of the tenants, that the officer may he permitted to amend his return, in conformity to what is alleged to bo tbe truth of the case. Without adverting to the danger of such a course in any case, after thirty years, in regard to facts resting in memory, wo are of opinion, that it cannot be permitted, with a view to affect third persons. The propriety of such an amendment, was fully considered in the case of Means & al. v. Osgood, 7 Greenl. 146. It was there stated, that it could not be allowed to affect any other persons, than the original parties. It lias even been held, that the interest of third persons could not bo affected, where the amendment was allowed and made by leave of Court. Emerson v. Upton, 9 Pick. 167. And we are of opinion, that the parol proof cannot be received to sustain the levy, and that the officer cannot be permitted to make the amendment proposed. It lias been insisted, that it is too late to take this objection, after the lapse of so many years. To this we think it is a sufficient answer, that if presumptions, inconsistent with the record of a levy, could be allowed in any case to sustain it, they could not arise in [78] the period of little more than sixteen years, which intervened between the conflicting levies, in the case before us. If the title of the tenants is fatally defective, it remains to determine, whether an equal infirmity does not attach to that of the de-mandant ; for unless her title has been sustained, she cannot have judgment. It is based upon the seizin of her ancestor, derived from a levy of the demanded premises in August, 1823. No objection has been taken to this levy, in point of form; but it is urged that the tenants have a right to treat as a nullity the judgment, upon which the execution of the levying creditor issued. But we are of opinion, that it was rendered by a Court, having by law jurisdiction of the cause ; and that it cannot be impeached collaterally ; but remains in force, until reversed. We are not in this case, called upon to determine the force and effect of the judgment of another State, which was elaborately discussed in Hall & al. v. Williams, 1 Fairf. 278. The debtor, having had his residence in this State, had removed therefrom, and had established his domicil elsewhere. But he left estate liable to be attached, of which he was not divested by the defective levy of the tenants. This estate the ancestor of the de-mandant attached. The officer, in his return, sets forth the attachment of the land in controversy, “supposed” to be the property of the defendant. The lien of the creditor, or the title of the debtor, was not impaired by the use of this qualifying term. It was a case then within the first section of the act regulating judicial process and proceedings. Stat. of 1821; c. 59. It is there provided, that if the goods or estate of a defendant out of the State are attached, “ the officer shall return the writ, with his doings thereon; and such action being duly entered, the Court may order such notice to the defendant, as justice may require.” It appears therefore, that the action was duly entered, and subject to the jurisdiction, direction and control of the Court. If in the subsequent exercise of this jurisdiction, they departed from the requirements of the same statute, so that there is manifest error upon the record, the law affords an appropriate remedy ; but as in other cases, where error arises in the progress of a cause, the judgment remains in force, until reversed. [79] As to that part of the premises, which Greenhaf, the owner, conveyed by deed to the ancestor of the demandant in 1807, there can be no doubt that bis title passed by that deed ; as the grantor was then in the actual possession. Upon the facts agreed, the opinion of the Court is, that the demandant is entitled to judgment.