Welsh v. Joy

Shaw C. J. delivered the opinion of the Court. The question in this case is upon the validity of the demandant’s title. An objection is taken to the officer’s deed made upon the seizure and sale of the equity of redemption, that it appears in the recital, that thirty days did not elapse between .the seizure and sale, as required by the statute, and it is contended that by law the party is estopped to deny that the facts were as stated in such recital, and from showing the true state of the fact by the officer’s return or by other evidence aliunde. But the Court are of opinion, that those claiming under that deed are not so estopped, that all the facts upon which the power is given to the officer, need not De recited in the deed, and that a misrecital of such facts is not fatal ; and that it may be aided by a return upon the [481] execution showing that the statute has been duly complied with and the power pursued. Jackson v. Pratt, 10 Johns. R. 386. Another exception was, that the execution was not returnea into the clerk’s office at the return day, nor until many months after ; but this is no valid exception, and it is not necessary to the validity of a title under an officer’s sale, that the execution shall be returned to the clerk’s office at the return day ; but if returned at any time before the trial, it is sufficient to make it competent evidence. Prescott v. Pettee, 3 Pick. 331 ; Emerson v. Towle, 5 Greenl. 197. The levy of an execution is often not completed and the execution cannot be returned, till after the return day, and there being no time limited by law, within which an officer shall make his return, the Court have no ground upon which to decide, that a return shall be rejected as a nullity, as not being made in sufficient season. There is also no time limited from the sale, within which a deed shall be made by the officer to the purchaser ; nor any time within which the purchaser shall record his deed. The principal security that such delays shall not be abused to the injury of others is, the interest of all who are concerned, to complete their titles promptly, and the apparent absence of all interest to suffer unreasonable delays. But if it be thought necessary to the security of the rights of property, to fix with more precision the times within which these various acts shall be done, it is a question for legislative and not for judicial consideration. But a much more difficult, question, and the one which has principally demanded and received the attention of the Court, is, whether an officer, who has in fact levied an execution, sold property to satisfy it, and executed it, can make a valid return thereon many months after he is out of office. Though at first view it appears that there would be great risk of collusion and fraud, in permitting an officer, long after he is out of office, to make a return, yet we think it results from the nature of his office and duty, regulated as well by the common law as by statute, that he has that power. There would be the same danger of abuse, in making a return long after the business was actually done, by one retain [482] ing his office, and yet it would be difficult to discover any satisfactory ground upon which to hold that it would be contrary to law. Until the execution is actually deposited in the clerk’s office, the return does not become matter of record ; and until then the officer needs not the authority of the court to make or amend his return ; till then it seems to be under his own control and in his own power. It seems to be a rule of the common law, that an officer, who has begun the service of an execution, shall proceed and complete it, though he go out of office in the mean time. Clerk v. Withers, 1 Salk. 322. But this rule does not stand solely upon the authority of the .common law, but we think the same rule is prescribed by statute. St. 1783, c. 44, § 4. The statute is explicit, that all sheriffs, when removed from office, as well as their deputies, shall have power to execute all such precepts as may be in their hands, at the time of their removal from office. Probably, from the context, the primary intent of this clause of the statute was to provide, that the deputies should retain their power to this extent, when their general authority should be determined by the removal of the sheriff; but the terms are broad enough to embrace the case of each deputy sheriff, removed from his office, and aided by the general rule of the common law, and a reasonable and just regard for the rights of those who have an interest in the execution of these public and official duties, we think that the statute is to be so construed as to include this case. The power of executing all process in their hands, at the time of their removal, goes a little beyond the rule of the common law, but necessarily includes the power of completing the execution of all process, the execution of which had been begun by them, and a fortiori it includes the power of making all needful returns. If therefore when Freeman was removed, he had advertised the property for sale, he might afterwards proceed to sell and give deeds, and do all other needful acts. If he had sold, he might execute ■) deed, and if he had executed a deed, he might make a return. Now as there was no time limited within which his [483] return must necessarily have been made, to be available, if he had remained in office, and as he did virtually remain in office as to this process, that is, as he did retain his official authority and character, for this purpose, no different rule can properly be applied to the case of a deputy removed, from that applicable to one remaining in office. There is the less reason for apprehension of misconduct or collusion in a case like the present, where the officer has all the materials for a return, prepared to his hands, and in such form, that he can hardly make a false return without immediate detection from his own open and recorded acts. Here are the advertisements, the deed on record, and the execution recorded in the registry of deeds, with a list of the fees for all the acts done, including a charge for making this sale. It seems clear, that if this return can be supported as a good return, and received as competent evidence, it shows the regularity of the proceedings upon the execution, and establishes the title under which the demandant claims. And on the whole, we are well satisfied, after some doubt and hesitation, that the officer had authority to make return at the time and in the manner, that he did, that it shows a good power on the part of Freeman to convey, that that power was well executed, notwithstanding the misrecital in the deed, that under that deed William Savage acquired a good title which has been well conveyed to the demandant, that this title is prior in time and of course better in right, than the mortgage from Curtis to Thacher, under which the tenants claim, and that the demandant has a right to recover. Judgment on the verdict.