Bryant v. Knapp

Spear, J. The writ in this action was against the personal defendant Knapp, and also against a certain "dwelling house and the land upon which it stands” described in the writ and owned by one Sherburne, who is not a party to the writ. The action was brought to enforce a statutory lien on the dwelling house and land of Sherburne. The question is whether the officer's return upon the writ shows, or rather constitutes, a valid attachment of the Sherburne dwelling house and land as real estate, since any attempt to attach the dwelling house as personal property was and would be nugatory. Skillin v. Moore, 79 Maine, 554. An attachment of real estate is not made by any acts on the land. itself, but solely by the officer writing a return on the writ that he has attached the real estate. Perrin v. Leverett, 13 Mass. 128; Crosby v. Allyn, 5 Maine, 453. Of course this must be followed by filing in the registry of deeds an attested copy of the return of attachment, etc., as provided by statute, but the attachment is made when the return is written. The return is the attachment and the only attachment. Carleton v. Ryerson, 59 Maine, 438; Bessey v. Vose, 73 Maine, 217. Under these rules of law, it is contended that since the return of the officer that he has attached and that return only, constitutes an attachment, it follows that if he omits to state affirmatively in the return that he has attached, there is no attachment, whatever else he may state. It seems to us, however, that this contention runs counter to the spirit and the expressed declaration of the law upon this subject as found-in our decisions. We think by the return "the intention is sufficiently disclosed by the language used to be clearly discernible.” This was all that was required in Hathaway v. Larrabee, 27 Maine, 451, to render an officer’s return, though informally made, effectual. It is further claimed, however, that the question is not one of intention. We hardly think this rtíle to be absolute. The case [143] above cited and the other cases referred to, say otherwise, The intention, to be sure, must be disclosed by the language used. It must appear from the return itself. If the language used does not disclose the intention, then of course, we look no further, — -we do not go behind the return. But we do have a right to examine every corner of the return to discover its meaning. If by such examination the intention is " clearly discernible ” the return is sufficient. It is also said that the return must state affirmatively that he has attached. This is undoubtedly true, but no particular set of words or phrases are required to be employed to accomplish this result. If the affirmative appears from a fair construction of the whole return it ought .to be sufficient, That it was the intention of the officer to attach an.d that it affirmatively so appears, seems to be "clearly discernible,” from the wording of the return itself. No other purpose can be inferred from the language. No other subject matter was involved. It would seem, therefore, that the words "to attach” are surplusage, if relied upon to defeat the veiy object and purpose of the return, and should be so regarded in construing it. They are not words that create any uncertainty as to the parties, as in 27 Maine, supra, or as to the property attached. They do not negative an attachment. They fail to be apt words, when taken alone, to affirmatively express one. But they are not to be read alone. They must be construed in the light of the rest of the return. When so read they should be stricken out as sur-plusage. Strike them out and the return is clearly correct. We are unable at present to discover how any other inference can be drawn from the use of this language than that of an intended attachment of the dwelling house. Our court have not only said that if the intention is sufficiently disclosed by the language the return is good but that "technical accuracy or the most appropriate phraseology is not to be expected in such returns. They will be sufficient if the purpose is clearly made known by the language used.” Lambard v. Pike, 33 Maine, 142. Also that "it is not easy to imagine a case in which there would be less reason or more [144] danger in considering language to be used with technical accuracy, than in an officer’s return upon a writ. The very idea of doing so almost deprives it of a sober consideration.” Roberts v. Bourne, 23 Maine, 168. Exceptions sustained.