Cutting v. Harrington

Emery, C. J. Real action on report. The controversy is over two undivided thirds of the demanded land which the defendant claims under levy of execution. The judgment and the execution are admitted to be valid. The levy was by sale of the land under what is now R. S., ch. 78, sec. 32 et seq. The only objection urged against the validity of the sale and its efficacy to pass the title to the purchaser is that there is not sufficient legal evidence that the officer gave to the judgment debtor the notice of sale provided by the statute. The plaintiffs claim that the only competent evidence of such notice is the return of the officer upon the execution, which return in this case may be conceded, arguendo at least, not to show sufficient notice. But as was said by this court in Caldwell v. Blake, 69 Maine, 458, at page 470 : "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. ’ ” The giving the notice of sale, and how given, may be proved, prima facie at least, by the officer’s recitals in his official deed to the purchaser. Wigmore on Evidence, sec. 1664. In his official deed in this case the officer recited that he "sent to the (judgment debtor, naming him) a written notice by mail” of [100] the time and place of sale, the debtor not being a resident of the county in which the land lay. The statute (sec. 33) provided that in such case the notice might be "forwarded to him (the debtor) by mail, postage paid.” The plaintiffs contend that, even if the recitals are evidence, the omission of the words "postage paid” from the recital is fatal, and that because of that omission the purchaser acquired no title. In cases of levy upon land by extent, (where, instead of being sold at public sale after public notice, the land was transferred direct to the judgment creditor, as was formerly the practice in Maine and other New England States), it was generally held that the officer’s return of his doings must be drawn with fullness and exactness. Inferences and presumptions were allowed little, if any, force. Such has been the rule of construction in this State in such cases. We do not think, however, that those decisions control the decision of cases like this, where the land is sold at public sale after ample public notice. Indeed, it is very generally held in the other States that when a sale upon execution is actually made and a deed executed and delivered to the purchaser, no evidence of notice of the sale having been given need be adduced by him in support of his title. In Freeman on Executions, 3rd ed. sec. 286, the learned author, with many citations of authorities, says : "A very decided preponderance of the authorities maintains this proposition ; that the statutes requiring notice of the sale to be given are directory merely, and that the failure to give such notice cannot avoid the sale against any purchaser not himself in fault. This rule has been applied in cases where the purchaser was aware of the deficiency of the notice, and seems applicable in all cases in which the absence of the notice was not occasioned by some fraud or collusion of which the purchaser had notice, or in which he participated.” The theory seems to be that, while the officer is responsible to any party harmed by the absence of insufficiency of the prescribed notice of sale, the sale itself cannot be collaterally avoided thereby. Sec. 339. The purchaser at an execution public sale, or his grantee, is not in the same relation to the judgment debtor as is the judgment creditor taking the debtor’s land direct to himself by extent. Their titles [101] are different in origin and nature. The purchaser may have the benefit of reasonable inferences and presumptions in reading the officer’s recitals of his doings without conflicting with the strict rule in cases of levy by extent. Sec. 339 of Freeman on Executions. Thus in Wood v. Morehouse, 45 N. Y. 368, where one question was whether the officer had given the proper notice of an execution sale, the court held that, in the absence of evidence to the contrary, it was to be presumed, under the maxim omnia praesumuntur rite esse acta, that the officer gave the proper notice. Other cases to the same effect are cited by Freeman in the sec. 339 above cited. In this State, also, the strict rule applied to returns of levy by extent has been relaxed in cases of levy by sale. In Bailey v. Myrick, 50 Maine, 171, the statute required the notice of sale to be published in some "public newspaper.” The officer returned that he had published the notice in "a newspaper,” omitting the word "public.” The court held that it sufficiently appeared that the statute was complied with, that the word "newspaper” imported publicity. In Millett v. Blake, 81 Maine, 531, the judgment debtor was described in the execution as residing in Lagrange. In his recital of sending a notice by mail, the officer did not state that he directed it to the debtor at Lagrange. The court held that such a direction could be inferred, saying, page 535: "Something may be inferred as to the correctness of the action of a public officer when the law requires him to do a certain act.” In the case at bar, as already stated, the statute provided that the notice to the debtor might be "forwarded to him by mail postage paid.” The officer recited he "sent to the said (debtor)'a written notice by mail.” Taking into account the legal presumption "as to the correctness of the action of a public officer when the law requires him to do a certain act,” as was done in Millett v. Blake, supra, we think it a fair, and even obvious, inference that the officer prepaid the postage. It was at the time (1897 and 1898) well known that under the postal laws and regulations, mail matter would not be forwarded without prepayment of postage. It had then, as now, become a fixed habit especially among business men and officials, to prepay postage by means of affixing a stamp. Any [102] one then asserting he had "sent by mail” a letter or document, would have been universally understood as asserting that he had done everything required to insure its being forwarded, including prepayment of postage as well as depositing the letter in the proper post office receptacle. If convinced that in fact he had not prepaid the postage, he. would have retracted his assertion that he had "sent” the letter. The single word "mailed,” as used by a notary in his certificate, is held to imply that the requisite postage was prepaid. Rolla State Bank v. Pezoldt, 95 Mo. App. 404, 69 S. W. 51. The words "sent by mail” would seem to be of as strong import in any connection. We find no previous decision of this court in. cases of levy by sale compelling us to construe the officer’s recitals in this case so strictly and technically as the plaintiffs would have us. In Pratt v. Skolfeld, 45 Maine, 386, where the officer’s deed was held defective for want of sufficient recitals, the defects are not stated. Hence that case is no guide. Even in the cases of levy by extent, no return has been adjudged insufficient because of an omission like this. Granting that the court should be critical in constructing official returns to see that all essentials are fully stated, or clearly implied, or presumed by law, yet it would be hypercritical to hold at this day that an official recital by an officer that he had "sent a written notice by mail” does not import that he affixed the usual stamp, thus prepaying the postage, (that being his official duty) as well as that he deposited the document in the proper post office receptacle. No other objection is made to the deed or recitals in the deed, and none is perceived. It must be held, therefore, that the defendant has the better title to two-thirds, and that the plaintiff can only have judgment for one-third of the land. Judgment for the plaintiff for one undivided third only of the demanded land.