Benson v. Smith

Tenney, C. J. The plaintiff claims to be the owner of thef right of redeeming the franchise of the Buckfield Branch Railroad Company, with all the privileges and immunities, together with all personal property and real estate of said corporation, however situated and bounded, within the counties bf Oxford and Cumberland, together with all the buildings situate on said premises, including all iron rails, the same having been mortgaged by said corporation to the defendant, by its deed, dated October 29, 1849, under a sale of the same right, claimed by the plaintiff, made to David Stanley, on February 1, 1852, and which passed through mesne conveyances to the plaintiff. The sale purports to have been made by Jesse Drew, as a deputy sheriff of the county of Oxford. The plaintiff seeks a decree under his bill, that he may be permitted to redeem the premises, by paying, which he offers in his bill to do, what, if any thing, shall appear to remain due, in respect to the principal and interest on said mortgage. The defendant filed his answer to the bill, and, among other things relied upon in defence, he insists that said Stanley acquired no right of redeeming the premises un [425] der tbe attempted sale, tbe proceedings of tbe officer being ineffectual to vest any interest in him. Every thing essential to a title under the statute ought to appear of record. Wellington v. Gale, 13 Mass. 183. And we are to look at the return of Jesse Drew, the deputy sheriff, who returned his doings upon the execution, by authority of which ho professed to act, and compare it with the provisions of the statute, touching the sale of such property. The corporate property of any company, in this State, and the franchise of any corporation, having the right to receive toll, &c., shall be liable to attachment on mesne process, and to be levied upon by execution for the debts of the corporation, as provided in chapters 94,114, and 117, of the Revised Statutes. R. S., c. 76, § 17. By c. 94, § § 36 and 37, the right of redeeming real estate may be taken and sold on execution; in which case the officer shall give written notice of the time and place of sale, to the debtor, &c., and shall cause notifications thereof to be posted in some public place, where the land lies, and in two adjoining towns, all of which shall be done thirty days, at least, before the day of sale; and shall also cause an advertisement of the time and place of sale, to be published three weeks successively before the sale, in some public newspaper, printed in the county where the land lies, &c. By c. 117, § 20, R. S., whenever judgment has been recovered against any company, incorporated with power to receive toll, the franchise of such corporation may be sold on execution at public auction; the officer giving notice of the time and place of sale, by posting a notification in any town or plantation, in which the treasurer, clerk or any officer of the company, if there be any officer, and, if not, where any stockholder may reside, thirty days, at least, before the day of sale, and by causing an advertisement, &c., to be inserted three weeks successively in some public newspaper, &c., four days before the day of sale. If is objected by the defendant, that the officer, who returned upon the execution that he had made sale of the interest, [426] alleged to have previously belonged to the corporation, the debtor in said execution, being a deputy sheriff of the county of Oxford only, according to his return, could not seize and make sale of the mortgagers’ right, when the right, attempted to be sold, existed in the county of Cumberland, as well as in the county of Oxford; there being no distinction between the part lying in one county and that in the other, in the sale, or in the price received, but the entire right being exposed for sale and sold together. By R. S., c. 104, § 19, “ every sheriff and each of his deputies shall serve and execute, within his county, all writs and precepts, to him directed and committed, and issued by lawful authority.” The statutes confer the power upon sheriffs and their deputies; and unless the power is thereby conferred expressly, or by fair implication, it does not exist. The mode in which writs and precepts shall be served and executed is regulated by statute; and unless substantially conformable thereto, the doings of the officer are invalid. The seizure of property upon execution, with the view to make sale thereof, is regarded as an important and necessary act in making a legal sale. Subsequent proceedings, in order to vest the title in the purchaser, have reference to the time of the seizure, and depend upon the state of the title, as it then was. Bagley v. Bailey, 16 Maine, 153. Again; the statute provides, that the seizure on execution, of a debtor’s right to redeem estate mortgaged, shall be considered as made on the day when the notice of the intended sale was given, whether to the debtor, or by posting up notices, or by advertising in the newspaper. R. S., c. 94, §40. A seizure, therefore, of property, is contemplated as essential to a valid sale. It cannot be contended, that a sheriff or his deputy, can seize or sell property in a county, in which he is not commissioned to act; consequently, all notices of such sale, must be utterly nugatory. Nor can he seize and sell property with [427] any greater legal propriety, as a whole, when a part of that property was in a comity to which his authority therein did not extend. When Jesse Drew, the deputy sheriff, who undertook to make sale of the right in equity to redeem the premises, mortgaged by the Buckfield Branch Railroad Company to the defendant, posted the notices of sale, &c., we are not aware of any power in him, to expose by sale, any right existing beyond the limits of his precinct. If he had no right to sell, he certainly had none to seize, and the notices wore then a nullity. But the plaintiff relies upon the statute of January 28, 1852, which went into operation on that day, ten days only before the sale. It is not perceived, that the notices and advertisements, would not have been conformable to law, if this statute had been in force at the time of the seizure, and the causing of the notices to be given, and the advertisements to be published. Nor do we see any defects in the sale, upon this hypothesis, if the property treated as real estate was legally of that character. This statute provides, that when the mortgaged lands are situated in two or more counties, the sheriff, or a deputy sheriff of either of the counties, may sell the whole right of redemption; and if it appears that he gave the notices, “as above prescribed,” the sale shall be in all respects as effectual as if the land had been wholly in a town situated in his own county.” This provision, by its terms, is an addition to section 37, of chap. 94, of the Revised Statutes of 1841. The object of this enactment, seems to have been, merely, to allow the entire right which may exist in two counties, to be sold by a sheriff or his deputy in one of the counties, provided the notices shall be such as were previously required when the land lay in one county exclusively. This statute is general, and designed to give a power to a sheriff, or his deputy, after its passage, which did not exist before. It does not, in the slightest degree, dispense with any act previously necessary, to make valid a sale of an equity [428] of redemption in real estate. The former requirement, that notices shot Id be given thirty days at least before the sale, remained unimpaired. The notices, “as above prescribed,” must refer, not only to notices which the statutes, existing when they were made, provided to be given upon a seizure of an equity o ' redemption, legally made, but also to those which, under the same laws, would be required as parts of the proceedings, which would constitute a valid transfer of the interest attempted to be sold. It could not refer to notices upon a seizure, which the officer had no power to make, and which, if made, would be without legal effect. A paper, exposed in a public place, purporting to be a notice that a sale would be made, which the law at the time did not authorize, was no notice whatever. And so long as a notice to be legal, is required to be given thirty days at least previous to the time of sale, one which is ineffectual till ten days only before the sale, cannot be sufficient. The steps essential to render the sale of the equity of redemption effectual, not having all been taken, the purchaser thereof acquired no interest, and consequently could confer none upon others. The preceding views are based upon the assumption, that the defendant had the rights which the plaintiff supposes, before the attempted transfer thereof, and that the statutes provided a node by which those rights could be transferred under an officer’s sale. Whether such rights existed, and were the subject of sale upon execution, are questions upon which we give no opinion. Bill dismissed with costs. Hathaway, Cutting and Goodenow, J. J., concurred. Rice, J., concurred in the result.