Dewey v. Tobey

Colt, J. To give validity to the levy of an execution upon land taken by way of set-off, it must appear from the officer’s return that the appraisers were appointed by himself, and the creditor and debtor; or that the debtor was absent from or not 96 a resident in this state, and had no agent or attorney known to the officer, or neglected to appoint an appraiser, and that the officer appointed one for him, as the case may be. Gen. Sts. c. 103, §§ 3, 25. The officer in this case returns that the debtor had removed to the State of New York, and had no attorney known to him within this state, and that one of the appraisers was appointed by a person “who claimed to act as'the authorized agent of the within named William Dewey, the debtor.” This is not sufficient. The debtor being absent from and not a resident of this state, a con-tmgency had arisen in which his authorized agent might appoint in his stead. But the statute requires that such agent should be known to the officer as the debtor’s agent or attorney, and, if not so known, then the officer must appoint for the debtor, and return the fact that there was no such agent or attorney known to him. The return in this case may be true, and yet the person who claimed to be an agent be a person wholly unauthorized and unknown by the debtor. The language of the return implies want of knowledge by the officer of the existence of the alleged agency. The law puts upon him the responsibility of determining the fact of agency, and makes his return conclusive in a real action to recover the land on the ground of an alleged defect in the levy. Chappell v. Hunt, 8 Gray, 427. Dooley v. Wolcott, 4 Allen, 406. In the case of this levy no action for a false return would lie against the sheriff, on the ground that the person claiming to act was not an agent of the defendant, because the return only is, that he claimed to act as such. The whole return is indeed to be construed together in ascertaining its meaning, but there is nothing in the other portions of it which can fairly control this result. The recital contained in their certificate, that the appraisers were duly chosen and sworn, which is made a part of the return, with the other recitals of the return referred to in the argument for the tenant, cannot control the plain statement that the second appraiser was appointed by one claiming to be an agent, and not by one known by the officer to be an agent. Exceptions overruled.