Thayer v. Roberts

Appleton, J. It appears that one Gerrish, a deputy of the defendant, having seized an equity of redemption as the property of one Snell, on an execution in favor of the Water-ville Bank, against him, proceeded to post up notifications of the time and place of sale, in the town where the land lies, and in the adjoining towns. In these notifications the tim of sale was stated to be on Saturday, the 24th day of June, when it should have been the 23d of June, the 24th being Sunday. Having ascertained his mistake, the deputy canceled the same, eight days before the time appointed, by erasing 24th and inserting instead thereof 23d. On Saturday he proceeded to sell the equity. According to his return of his doings, the notifications stated the time of sale to bo on the 23d of June. The plaintiffs, having a subsequent attachment upon the real estate of Snell, on which they obtained judgment and sued out execution, have brought this action to recover damages for the false return of the officer, in falsely stating that he had posted up notifications stating the sale to be on the 23d of June, when in truth it was notified to be on the 24th of June. The return, as made, discloses no error or mistake, and conveys the equity of redemption to the purchaser. If the officer, in his return, had stated the sale to have been on Saturday, the 24th of June, that day being Sunday, or if he had therein truly set forth his original mistake and its subsequent correction, and the time when made, it would have disclosed a failure to comply with the requirements of the [254] R. S., ch. 94, s. 37. In either event the sale would have been invalid. In Willman v. Lawrence, 15 Mass. R., 326, the sale was advertised to be on Friday, the 17th, when Friday was, in fact, the 16th. In reference to this mistake the court say, “ The mistake made in advertising the sale is sufficient to render it void. There is the utmost necessity of precision in transactions of this nature. Those who might be disposed to attend the sale as bidders, would be deterred by observing such a blunder. The canceled notice on the day of sale did not leave sufficient time for general information.” The return of the officer being false, and being so far conclusive that the title of the equity passed to the purchaser at the sheriff’s sale, the plaintiffs could not take it on their execution. They have, conse quently, a right of action against the defendant, for the false return of his deputy. The measure of damages is the value of the property which they would have been enabled to apply in satisfaction of their execution. This is shown by the sale on the execution in favor of the Waterville Bank, and that amount does not seem to be disputed as correct. For that amount a default must be entéred, after deducting therefrom the expenses of the sale. Whitaker v. Sumner, 7 Pick. R., 555; Whitaker v. Sumner, 9 Pick. R., 308. Defendants defaulted.