Fairfield v. Paine

— 505 — The opinion of the Court was drawn up by Tenney J. By the return on the writ against Gerrish in favor of Gowen, the attachment of the land in controversy was made one second after twelve o’clock on the 17th day of May, A. D. 1836. The original return of the attachment of the same land, upon the writ in favor of Trafton against Ger-rish, showed that it was made upon the same day as the other, without designating the precise time in the day. As the returns were, before the amendment of the latter, what was the interest of each party in the land by virtue of the levies under which they respectively claim ? When the evidence of the official doings of those authorized to make service of writs, is required to be in their returns, the parties to the precept or process, and those holding under them, are conclusively bound thereby. Every thing which the officer is required to do iu making such services must appear affirmatively, by this species of evidence. There can be no presumptions short of necessary inferences, which can supply omissions. Hence, in the return of an extent upon real estate by virtue of an execution, if the officer omits to state, by whom the appraisers were chosen, the return would be so defective that the creditor could acquire no rights thereby; notwithstanding he might be able to show conclusively by _ other evidence, that'there had been a perfect compliance with the requirements of the statute. In the return of service upon mesne process, if the officer should omit the date, unless this defect should be cured by an amendment, or by some.act of the defendant therein, a judgment rendered in that action would be erroneous, as the return would furnish no evidence, that there had been legal notice to him. The demandants contend, that a fair and liberal construction of the return upon Traflon’s writ, as it was when first made, would be, not that the land was attached at the earliest or the latest possible moment of the day, but at a moment equally removed from their extremes, which would be at noon. To admit the correctness of this proposition would establish — 506 — the principle, that all attachments which in the return thereof have no date of the hour or minute when made, must be presumed to be made at noon, which no one will contend is generally the fact. A consequence arising from this would be, that an attachment made and so returned at the earliest time, after noon, would be postponed to one made at the latest moment of the same day, if the precise time was omitted in the return of the latter. And this presumption, which it is contended will arise, is equal to the most conclusive positive proof, as no evidence to affect a return of an officer of his doings in such a case can be adduced. An officer making an attachment may know the precise moment, when it is made; it is the privilege of a creditor to have this appear upon the return. If it be omitted to his prejudice, when required to be made, the officer is liable. But if all attachments without a more particular date than that of the day, are to be considered as made at noon, the rights of the vigilant creditor, who causes one to be made after that time, however early, and the return shows the precise moment, are to be surrendered to the one coming after him, who takes no measures to have the hour designated; and the former is remediless, for the officer, who made his attachment, has done his whole duty, and the other has made no false return. In returns of officers, nothing is to be presumed in reference to dates, more than any other fact. A creditor has the advantage of no time earlier than that which is so expressed, as to exclude one which is later. In order to hold the property returned on another writ, it is not enough that he should show by the return, that it may have been, but that it certainly was earlier than the attachment upon the former. The attachment was made on Gowen’s writ at a fixed and certain time. That upon Trafton’s, according to the return when first made, is not affirmatively shown to be at a time so early. The former must take precedence of the latter. Assuming, that the amendment of the return upon Trafton’s writ was made in pursuance of an order of the District Court, where the record was, which is denied, can that amendment — 507 — affect and change the rights of the parties now before us ? The party to be prejudiced thereby is not the debtor in Traf-ton’s execution, but the grantee of another creditor, who wo have seen derived a perfect title as against the demandants, by his attachment upon the writ followed by a seasonable levy upon the execution. It is insisted by the demandants, that the amendment was allowed in the exercise of a discretion, and therefore is not subject to revision by any other Court. It is true, that many amendments may be allowed by a Judge of the District Court, or by a Judge of this Court while sitting alone, which on consideration may appear of doubtful expediency, but if they were permitted in the legal exercise of a discretion, their propriety cannot be questioned on exceptions. But if the amendment is one, which the law does not authorize, it is otherwise : and the demandants arc not understood as controverting this proposition. An amendment in a return of an officer, beyond the legitimate power of a Court to permit, in the exercise of a discretion, cannot take away the rights of third persons, which were perfected before any alteration took place in the return as first made. If in the trial of an action in the District Court, such an amendment should be allowed, the party sought, to be injuriously affected thereby objecting, and the case should be carried up by exceptions or appeal, the legal propriety of such an amendment, and the effect thereof could certainly be considered and determined by the appellate tribunal. A contrary doctrine might leave to the aggrieved party a right of appeal, but would allow the Court appealed from, to change entirely the evidence first presented, so that the character of that evidence, and the right to change it to ■ the prejudice of either party could not be revised. In Emerson v. Upton, 9 Pick. 167, the Court say, “We do not interfere with the rights of the Court of Common Pleas to allow the officer to alter his return; from the evidence on which that Court acted, we presume they had sufficient ground to be satisfied that the attachment was made on the 6th of March. But they did not decide on the effect of the amendment, nor could they, so — 508 — as to bind this Court upon any question arising out of the proceedings, which might affect the rights of third persons.” Cases bearing upon this question, decided in this State, Massachusetts. and New Hampshire, have been cited. And the rule, which may be extracted from them, on the subject of allowing officers to amend their returns upon writs and executions so as to affect the interest of third persons, whose rights had been-previously acquired, seems to be well established ; if there is any difficulty it is. in its application. “ Such amendments can be allowed only where there is something upon the record, by which the correction can be made, and in such cases .there can be no difficulty.” Thatcher & al. v. Miller, 13 Mass. R. 270. “ When the subsequent purchaser or creditor, being chargeable with constructive notice, of what is on the record, if he has sufficient to show him, that all the requirements of the law have probably been complied with, and he will, notwithstanding, attempt to procure a title under the debtor, he should stand chargeable with notice of all the facts, the existence of which is indicated and rendered probable by what is stated in the record, and the existence of which can be satisfactorily shown to the Court.” Whittier v. Varney, 10 N. H. R. 291, In the cases cited in the argument, unless the party, moving that an amendment may be made, or seeking a right by virtue of such, has brought himself within these principles, the amendment has been refused, or if made, it has not been permitted to prejudice the rights of third persons, previously obtained. Was there any thing upon the record in Trafton’s case from which the amendment could be made ? or was there any thing therein, which could be a notice to Gowen before his levy, or to the tenant, Paine, before his purchase, that it was probable, that the attachment upon Trafton’s writ was made at an earlier time than one second after twelve o’clock on the 17th day of May, A. D. 1836 ? The date of .the return was as specific as appears in a very large majority of cases; it was perfect in itself, there being nothing indicative of any positive error or accidental omission. The fact that the service was — 509 — made on the first day of service for the next succeeding Court, does not impress us as having a tendency to render it probable, that the attachment was made before noon of that day, or that the date was not as particular as was intended. The omission of the precise time of making the attachment, in the return, is nothing from which an amendment can be made. If it were so in this case, it would be the same in all, whore the year, the month and the day make the only date. Could one be aided in the least, in ascertaining the time of day, when the numerous writs on the files of this Court were served, by an examination of the returns, where the precise time is not expressed ? It is difficult to perceive how the omission to state that, which is not usually staled, and which is not required to constitute evidence of a legal service, and which implies no mistake can enable the officer, who made the service, to state the exact moment, when it was made. Many circumstances, independent of the record, may call to his mind the time of day when he made his attachment, but unless the record discloses something, from which the addition can be made, the rule forbids the amendment. If there was nothing upon the record,, which could aid the officer in making the amendment, it follows that there was nothing therein rendering it probable to the mind of another attaching creditor or purchaser, that there was an omission of that, which if supplied, would entitle the creditor in that suit to hold by the attachment. But there is that upon the return itself, which renders it very remarkable that the exact time should have been omitted, if the attachment was made at the earliest time after the commencement of the 17th day of May, A. D. 1836. It was not. a case where an officer had nothing to do but to sit down at his table in his own room, and make a return or a memorandum of an attachment of real estate, which may be done without going upon the land; but the officer in this ease must have actually gone to the spot, where lay fifty thousand of boards, which he states in his amended return he attached and delivered to the creditor, at the earliest possible moment after the 16th of May. If it was then — 510 — thought so important, that the service should be made about the hour of midnight, and the minute and the hour were entirely omitted in the return, it implies such a degree of forgetfulness or want of care in the officer as to render it somewhat hazardous, to permit the rights of third persons to be taken away by an amendment made from his memory three or four years afterwards. No case has been referred to, in which an amendment has been allowed to prejudice the rights of third persons where the record did not give stronger indications of omission or mistake than the one in question. It has always been the policy of the law, that the title to real estate should rest upon that evidence which cannot mislead, and which should remain unchanged by time; that it should not depend upon the frail recollection of honest men, or the false testimony of dishonest men. The statute of frauds and our laws of registration of titles to real estate are universally approved. In consequence of them, the right which has been fairly acquired, is not liable to be defeated. If a register of deeds could be allowed to make an alteration in, or an addition to the date, showing when a conveyance was recorded, years afterwards, from his memory, which he might honestly suppose did not mislead him, and thereby change essentially the titles, which were evidenced by the records, the registry would be but an imperfect security. And it is certainly no more important that such records should be exempt from the mutilation which would essentially change rights, than those which are made by other officers who are intrusted with the responsibility of fixing titles, by their returns upon judicial precepts. It is presumed, that the amendment in the case in question was made in perfect good faith, by all who had an interest therein ; but to allow it to have the effect which is claimed by the demandants, would take away the rights of the tenant fairly acquired, and overthrow the doctrine which has here for a long time been entirely settled. The demandants must become nonsuit.