Balch v. Pattee

Tenney, J. — The plaintiff claims to have been the owner of the land, where the hay was cut and removed by the defendant, by virtue of the levy of an execution in his favor against Tobias A. Hall, which levy seems to have been made perfect on February 17, 1851, and seizin delivered by the officer to the creditor, and acknowledged to have been received by him on the same day, all of which appear upon the back of the execution. The officer having certified at the bottom of his return, that the levy was completed on March 11, 1851, when noth [355] ing appears to have been done, or was necessary to give any additional effect to the proceedings, must be regarded as nugatory. The record of the extent, and the execution was made in the office of register of deeds on June 10, 1851, which was more than three months after the levy was effectual. But the .extent upon the real estate was not thereby defeated as against the debtor. R. S., c. 94, § § 10, 19, 20 and 21; McLellan v. Whitney, 15 Mass. 137. No fatal defect appears in the appraisers’ or officer’s return, or any of the proceedings shown upon the execution, and the debtor’s interest in the land vested in the plaintiff, and he became possessed of the same. The defendant, claiming no right in the land, is in no better situation than the debtor in the execution could have been, under the like circumstances. Evidence was introduced tending to show, that the defendant cut the hay in the summer of 1851 and 1852, and that he promised the plaintiff to pay therefor, on the condition, that the place on which it was cut was the property of the plaintiff, and that he had used the hay prior to the commencement of this suit. The title of the plaintiff to the land, being shown, and no question, that the hay was cut upon the land covered by the extent, the promise is to be treated as one which was absolute, and the plaintiff was entitled to have the evidence presented to a jury. Exceptions sustained,— Nonsuit taken off, and the action to stand for trial. Shepley, C. J., and Howard, Hathaway and Appleton J. J., concurred.