Caldwell v. Blake

Barrows, J. To support this action of trespass upon lands situated in that part of Woodstock which was formerly Hamlin’s Grant Plantation, the plaintiff introduced a mortgage deed of the premises from one John B. Merrill to himself, dated January 18, 1875, and recorded same day, to secure the sum of one thousand dollars, payable in two years, with interest annually at ten per cent; a notice of foreclosure for breach of condition, recorded May 1, 1876, and the testimony of said Merrill that the mortgage debt was unpaid; that he gave possession of the premises, after the publication of the notice of foreclosure, to the plaintiff, under an agreement that he should apply the income from them to the payment of the mortgage debt, and that defendant, though forbidden by plaintiff’s agent, cut the grass on the premises in 1876, which is the trespass complained of. Defendant claims title to the premises in himself by virtue of a sheriff’s deed to him as the highest bidder at a sale made Juno 19, 1875, on an execution in favor of Eaton Shaw against the inhabitants of Hamlin’s Grant Plantation. To maintain his title he produces copies of the writ and proceedings, and record of the judgment in said suit, and the execution and officer’s 'return thereon, from which it appears that Shaw’s claim against the plantation accrued prior to January 9, 1873 ; that the suit was brought July 21, 1874, and upon regular proceedings had resulted in a judgment in Shaw’s favor for debt and costs, at the December term of the superior court in Cumberland county, and that execution was issued December 17, 1874. In 1ns return the officer certifies that he made diligent search for goods and chattels belonging to the inhabitants of Hamlin’s Grant Plantation, the execution debtors, and for want thereof, on February 11, 1875, “seized the following described real estate, to wit: thirteen lots of land situated in said Hamlin’s Grant Plantation, as they are lotted out on the original plan of said plantation» — 466 — and numbered one to thirteen, inclusive, and owned, as far as known to me, to wit: . . lot numbered four owned by John B. Merrill and Mrs Almeda Newton. . .” He further returns that he advertised these lots for sale, (and herein his doings seem to be conformable to the requirements of the statute) and, at the appointed time and place, “ sold . . lot numbered four to Albion P. Blake for the sum of two hundred and ten dollars, he being the highest bidder therefor, . .” and then follows the further return that he gave deeds of the several lots sold to the various purchasers, and applied the proceeds in satisfaction of the execution and all fees. This return is dated at the bottom July 3, 1876, and the officer appends a copy of the published notice of sale dated Februai’y 11, 1875. The sale took place on tlie nineteenth of June, 1875, and the defendant’s deed from the officer bears date on that day, was acknowledged July 3, 1875, and recorded March 20, 1876. The defendant proved, subject to plaintiff’s objections, that, subsequent to June 19, 1876, a few days before the cutting of the hay here complained of, he went, in the presence of witnesses, and openly and peaceably, under his deed from the sheriff, took possession of the premises, the same not having been redeemed by any one, though more than a year had then elapsed since the sheriff’s sale ; and that he still holds the possession of the same. By chapter 269, private and special laws, approved February 13, 1873, the legislature annexed the territory known as Hamlin’s Grant to the town of Woodstock, and provided that “the corporate powers and organization of said plantation shall cease on the passage of this act, except that they shall continue for the period of two years for the sole purpose of collecting its dues and paying its debts, of suing and being sued. By § 2 it was enacted that Woodstock should not be liable for any portion of the debt of the plantation, nor the property or inhabitants of the plantation for any part of the existing debt of the town. By § 3 the assessors of the plantation were required to settle with all persons having unsettled dealings with the plantation, and assess a tax sufficient to pay its indebtedness, and the collector and treasurer were to continue in office until March — 467 — 4, 1875, if necessary, to collect the tax and pay the debts. These duties do not appear to have been performed; and by c. 608, private and special laws of 1874, the assessors of Woodstock elected that year were “ authorized to audit all claims against Hamlin’s Grant Plantation, . . and to assess a tax upon all the polls and estates as they existed in said plantation February 13, 1873, . . sufficient to pay all said indebtedness,” etc. The plaintiff urges several objections against the defendant’s title: 1. Peeause the execution was issued in the common form against the goods, chattels or lands of the inhabitants of Hamlin’s Grant Plantation only, and so did not authorize the officer to seize and sell property mortgaged to the plaintiff, who was a non-resident. P. S., c. 84, § 29, provides that executions against towns shall be issued against the goods and chattels of the inhabitants thereof, and against the real estate situated therein, whether owned by such town or not. The last clause in the original act, approved February 27, 1833, reads, “ whether owned by inhabitants or other persons.” The effect is the same, however, and makes all the real estate situated in a town or plantation (without regard to its ownership) liable on an execution for its debts, in the absence of goods or chattels of the inhabitants, not exempt. Put the execution here did not conform to the requirement of the statute, and did not run against the real estate of the non-residents situated in the plantation as it should have done. That the title of the creditor levying such an execution upon property of non-residents will not be good without an amendment was settled in Hayford v. Everett, 68 Maine, 505, where the subject of such amendments is fully discussed, and where it appears to be well settled, both on principle and authority, that while the defect in the execution, unless amended, avoids the title of the purchaser, because the officer could not lawfully sell property against which his precept did not run, yet the court will amend the mistake of its clerk in all proper cases, where the amendment would be in furtherance of justice between the parties, even where no motion to amend has been made. Lewis v. Ross, 37 Maine, 230. Hall v. Williams, 10 Maine, 278. Hollins v. Rich, 27 Maine, 557. — 468 — Morrill v. Cook, 31 Maine, 120. Thompson v. Smiley, 50 Maine, 71, and numerous other cases in this and other states. If it turns out upon examination of the other objections urged by the plaintiff that the levy was rightly made, and the defendant’s title is in all other respects good, we ought not to let this mistake in a judicial writ affect the rights of the parties, and must authorize the proper officer to correct it. Applying the reasoning of the court in Hall v. Williams, 10 Maine, 286, to this case, we say it is not perceived that the plaintiff can suffer injury by this amendment, or any inconvenience other than what he would have been subjected to if the execution had been originally in proper form. The real estate of non-residents was by law subject to be seized on execution for the debts of the plantation for want of goods and chattels of the inhabitants which might be taken, and the plaintiff’s property should stand just as it would if the recording officer of the court had not committed an error, which as to him was certainly harmless. See Sawyer v. Baker, 3 Maine, 29. Freem. Ex., §§ 63, 67, 72. The plaintiff’s next objection is that, at the time of the sale, the legal existence of the plantation had ceased, and he is therefore deprived of the remedy which he might otherwise have under B.. S., c. 84, § 31, against the plantation to procure a reimbursement. But the lien upon the property, created by its seizure by the officer on the execution, is not affected by the subsequent demise of the debtor. Parks v. Morse, Cro. Eliz. 181. Waghorne v. Langmeade, 1 Bos. & P. 571. Becker v. Becker, 47 Barb. 497. Dodge v. Mack, 22 Ill. 93. Den v. Hillman, 2 Halst. 180. Black v. Planters' Bank, 4 Humph. 367. If the appropriation of the plaintiff’s property to the partial payment of a debt of the plantation where it was situated, for which it was by law made liable, is to be regarded as taking it for public uses, still the law under which it was done cannot be deemed unconstitutional, for due provision was made, by § 31, c. 84, for his reimbursement, and it is not perceived how the rights acquired by the defendant by a purchase at a judicial sale made in pursuance of it can be destroyed because the remedy provided for the plaintiff cannot be made available against a plantation — 469 — which lias ceased to exist. The same result would have been likely to follow if the levy and sale under which defendant claims had been made any time during the last year of the legal existence of the plantation. The question as to the constitutional right of the legislature to dissolve one of these municipal corporations, leaving its liabilities unprovided for, does not properly arise here. If the act was invalid the plaintiff still has his remedy. Valid or invalid, it is not one upon which the defendant bases any claim. The plaintiff further objects that only Merrill and Newton are named in the notice as proprietors of the lot, and therefore the plaintiff’s estate under Merrill’s mortgage was not taken. Not so ; it was lot numbered four, “ as lotted out on the original plan of the plantation,” which was advertised for sale, and this is one of the modes in which § 29, c. 84, authorizes the seizure and sale of the land in a town on an execution against it. Under § 30 the officer is to advertise “ the names of such proprietors as are knowu to him of the lands which he proposes to sell,” but the validity of the sale, it is evident, is not to depend upon the extent or accuracy of his knowledge of the proprietors, when he seizes, advertises and sells the lots “ as lotted on the town plan.” The “ names of such proprietors as are known to him ” are to be given by way of further identification of the lot, and, perhaps, to call their attention to the notice ; but where he does not undertake to sell the lots “ as they are owned or occupied,” the number of the lot upon the plan of the town or plantation and the names of such proprietors as are known to him will suffice to meet the requirements of the statute. The plaintiff further argues that he had no notice of the sale and no opportunity to redeem, because the officer’s return on the execution is dated July 3, 1876, and it does not appear that it was returned to the clerk’s office until that time; and the purchaser did not record his deed until March 20, 1876, leaving only three months of the year, within which the owner of the lot was entitled to redeem, unexpired. But the only notice of sale which the statute requires is that which is given by advertising the time and place of sale three — 470 — months beforehand in the state paper and in one of the newspapers printed in the county where the land lies, if any, and if this is not effectual, there is little probability that the return of the execution to the clerk’s office, or the record of the officer’s deed in the registry of deeds, would be. At all events, the statute does not make them essential to the validity of the purchaser’s title. No question arises as to the effect of any conveyance by Merrill or the plaintiff after the sale on execution and before the purchaser’s deed was placed on record. Looking at the good understanding between the plaintiff and his mortgagor, John B. Merrill, as shown by the ready surrender of possession for breach of condition, by non-payment of first year’s interest, it is difficult to believe that the plaintiff did not have actual as well as constructive notice of the sale in season to redeem if he had desired to do so. Ho does not testify that he had not. But, if he had so testified, the court would not be at liberty to add another l’equisite to the validity of the purchaser’s title beyond those specified in the statute. Where an extent is made upon lands, the return of the officer must be seasonably made and recorded. Not so where property is sold upon execution. The statute does not require it, and the decisions are that “the purchaser’s title is not dependent on the performance of this duty by the officer. The purchaser has no control over the officer, and is not prejudiced by a deficient or incorrect return, nor by the entire absence of any return whatever.” Freem. Ex., § 341, and numerous cases cited in note. Wheaton v. Sexton, 4 Wheat. 503. Gibson v. Winslow, 38 Penn. 49. Again, the plaintiff objects that the officer does not express the cause of sale in the deed given to the purchaser, as required by § 30, c. 84. The requirement is somewhat indefinite. The object is, probably, to enable the party whose land is sold to establish his right to redeem by the same instrument that takes away his title, and, perhaps, to direct him to the witnesses and records necessary to prove his claim against the town under section 31. We think this is sufficiently done by the recitals in the deed to the defendant. The cause of the sale was the execution claim of Eaton Shaw against the inhabitants of Hamlin’s Grant Plantation, and — 471 — the officer sets out at some length his course of proceeding, pointing out the newspapers in which his notices of the sale, containing a statement of the amount of the execution and the court and term at which it was recovered, were published. We think the requirements of the statute and its objects are answered. But the plaintiff' insists that the officer’s return does not show that the notice of sale was published prior to February 13, 1875, and that such publication must be regarded as the date of the seizure. We do not think it is competent for him in this action to dispute the truth of the officer’s return, which is that he seized the real estate on the eleventh of February; and that is the date of his notice. The plaintiff' claims that the act of 1874, (c. 608, P. & S. L.) authorizing the assessors of Woodstock to audit claims against Hamlin’s Grant Plantation, and to assess a tax on the polls and estates there, as they existed in 1873, sufficient to pay its indebtedness, deprived Shaw of the power to pursue his claim by the ordinary process of law. There is no indication in the act of any intention on the part of the legislature to limit creditors of the plantation to this inode of enforcing their demands. In any view of it, when Shaw had been permitted to proceed to judgment and execution, without the interposition of any such suggestion, the title of a purchaser at a sale on the execution cannot be questioned collaterally for that reason. Finally, the plaintiff claims that the giving of the names of John B. Merrill and Mrs. Almeda Newton as owners of lot four in the notice of sale, without stating whether they owned in common or what portions each owned in severalty, is fatal to defendant’s title. The objection would be formidable if the officer had undertaken to seize and sell the real estate in the plantation “ by lots as they are owned or occupied,” or if only a part of lot four bad been required to satisfy the execution. But, as we have before seen, he adopted the other mode permitted by the statutes. It was lot four on the plan of the plantation that was advertised, and so long as the officer gave the names of such owners as were known to him, errors or omissions in the names would not affect the sale. It was lot four that was sold, — 472 — not the interest of Merrill and Newton in the lot only, but that of all other unknown owners as well; and, under such circumstances, if the owners or any of them desired to redeem, it would be necessary for them, where the law, as here, authorized a sale of the lot as an entirety, (if it was all needed to pay the execution) to adjust among themselves their shares of the redemption money. The case is not analogous to the sale of two equities of redemption in gross. Here the right in equity was created by the sale, and was a right to redeem lot four as it was sold. We think the defendant’s justification under his title may be regarded as established. For, “where an amendment is proper, it will, in collateral proceedings, be treated as if actually made.” Freem. Ex., § 72, and cases there cited. Plaintiff nonsuit. 'Appleton, O. J., Walton, Virgin, Peters and Libbey, JJ., concurred.