Lumbert v. Hill

Hathaway, J. The defendant, Joseph R. Lumbert, owned a lot of land in Bangor, on Exchange street; he was indebted to the Merchants’ Bank, in Boston, and also to the defendant, Thomas A. Hill. In June, 1840, the bank recovered judgment against Lum [481] bert for their debt, and caused their execution thereon to be levied on land as his property, and the levy was duly returned and recorded. Subsequently, April 17, 1843, Hill commenced an action against Lumbert, to recover the debt due him, and attached Lumbert’s real estate, and in due process of law, recovered judgment, upon which execution was duly issued and levied upon land as Lumbert’s property, which levy was also duly returned and recorded. The land described in the levy of the bank, includes the northerly half of Lumbert’s lot on Exchange street, and Hill’s levy covers the southerly half of the same lot. The plaintiff has title through sundry mesne conveyances from the Merchants’ Bank, and, in his bill, alleges that the levy of the bank, in fact, covered the whole lot, including the part subsequently levied upon by Hill, and that in the appraisers’ certificate, and the officer’s return of his doings on the execution, there was an error in describing the easterly boundary line, as running south, seventy degrees east, instead of south, seven degrees east, by reason of which mistake, as he alleges, the levy as returned and recorded, does not describe the land upon which the execution was actually extended, but omits that part of the lot upon which Hill’s execution was subsequently levied, and includes another piece of land, to which Lumbert had no title. And the plaintiff prays that the error may be corrected, and that the levy and the deeds following it, through which he derives title, may be reformed, &c. The extent of an execution on lands, accepted by the creditor, is a statute purchase of the debtor’s estate. By E. S., c. 94, § 19, it is made the officer’s duty to return the execution with a certificate of his doings thereon, into the clerk’s office to which it is returnable, and within three months after the completion of the levy, to cause the execution and the return thereon to be recorded in the registry of deeds, and by § 20, if the execution and levy are not recorded, as provided in § 19, it shall be void against subsequent attaching creditors without notice; “ but if the levy is recorded, though after the expiration of three months, it shall be valid [482] and effectual against any conveyance, attachment, or levy made after such recording.” The return of the officer is the only evidence of title by the levy. A statute title must always be perfect; that is, every thing made necessary by the statute, to pass the property, must appear by the return of the officer; and, when recorded, it must, of course appear by the record, to have been done. 14 Mass, 20, and Rand’s notes. And when the execution and levy thereof have been returned and recorded, as was done in this case, there can be no other notice of the previous proceedings than the record, by which subsequent attaching creditors or purchasers can be affected. “ To reform an instrument in equity, is to make a decree, that a deed or other agreement shall be made or construed, as it was originally intended by the parties, when an error, as to a fact, has been committed.” Bouvier, L. D. Tit. Reform. The levy of an execution on land conveys title by operation of law, not in pursuance of any agreement by which the intention of the parties was manifested, or can be ascertained. The question, however, of reforming a levy, after the execution and the officer’s doings thereon, have been duly returned and recorded, and where the rights of third parties would not be affected thereby, need not be considered in this case; for if the judgment creditor, by mistake, do not make his title to the land seized on the execution, perfect by bis levy, surely there can be no reason why a subsequent attaching creditor or purchaser should be prejudiced by such mistake, for the record is the statute evidence of what was done in extending his execution. Every person has a right to rely upon the record as the evidence of title, unless he have legal notice of a subsequent conveyance. The plaintiff cannot have the relief which he seeks, unless the officer can have leave to amend his return on the execution. To reform the levy and deeds as prayed for, and thereby change the existing legal titles of the parties, if it could be done, would render the registry of deeds of little value, as furnishing any certain evidence of title to real estate. [483] It is familiar law, that the Court will not allow an amendment of an officer’s return, after a long time has elapsed, unless from some minutes made at the time, and also, that an officer will not be permitted to amend a defective return of an extent, if a third person have subsequently acquired title to the land. But if the Court could grant the relief sought, in all cases of relief, by correcting mistakes in the execution of instruments, the party asking relief must stand upon some equity superior to that of the party against whom he asks it. If the equities are equal, a court of equity is silent and passive. 1 Story’s Eq., c. 5, § 176, and notes. In this case, neither party appears to have any equity superior to the other. The plaintiff has the title of the Merchants’ Bank, and nothing more. The bank and Hill were both creditors of Joseph R. Lumbert, and, of course, they both desired to collect their debts, and they had equal rights to do so. The bank levied their execution, and left a part of Lumbert’s land open to attachment by his creditors, as appeared by the record. If Hill had not attached the land, Lumbert might have conveyed it, or any other of his creditors might have attached it. Hill ascertained to his satisfaction, that the levy of the bank did not include it, and he was neither legally or morally guilty of wrong in attaching it to secure his debt. There was no contract or privity between him and the bank. He was not the guardian of their interests, and if the bank neglected to take and perfect their title to the land, which they might have taken on their execution, it was not his fault, and he had a perfect legal right to attach what the bank left of Lumbert’s land, and seize it on execution, in payment of his debt. It would have been requiring too much, to have asked him to be quiescent, and lose his debt, rather than disturb the plaintiff in the temporary enjoyment of property, to which he had no legal title, and which might, at any time, have been conveyed by Hill’s debtor, Joseph R. Lumbert, or attached or seized on execution by any of his creditors. [484] The result is, that if the levy of the bank, as recorded, includes the land upon which Hill subsequently extended his execution, then the plaintiff holds it by legal title; but if that levy does not include it, a court of equity can grant him no relief. The hill is dismissed with costs for the defendants. Tenney, C. J., and Appleton, Goodenow, and May, J. J., concurred.