Walsh v. Anderson

Field, J. When an execution is extended upon land, the officer’s return upon the writ is indispensable in order to complete the title in the creditor; and the writ with the return must be deposited in the office of the clerk of the court before the return can be admitted as evidence of the levy. Prescott v. Pettee, 3 Pick. 331. Bates v. Willard, 10 Met. 62, 81. When the right to redeem mortgaged land was sold on execution, the question was raised, but not decided, in Ingersoll v. Sawyer, 2 Pick. 276, 280, “whether, if no return were ever made, the purchaser could maintain his title by showing the deed of the officer, and proving from that, or aliunde, that all legal steps had been taken to authorize the deed.” In that case, there was a return upon the execution, and it had been deposited in the clerk’s office, although this was not done on the day required by the writ. See Wellington v. Gale, 13 Mass. 483, 488. Subsequent cases, however, decide or imply that, when the equity of redemption of land is sold on execution, a return upon the execution is necessary to the validity of the sale. Welsh v. Joy, 13 Pick. 477. Whiting v. Hadley, 3 Allen, 357. Hayward v. Cain, 110 Mass. 273. In Wade v. Merwin, 11 Pick. 280, 286, the court say, “ The return of the execution relates to the sale, and the sale is void without it.” The Gen. Sts. c. 103, §§ 39-43, in force at the time the executions in this case were issued, which regulated the sale on execution of an equity of redemption in land, have not the same explicit provisions requiring a return upon the execution as those which regulated the levy upon land by extent; but the decisions already cited must be taken, we think, to establish the necessity of a return upon the execution, in order to render a levy of execution valid, in whichever form it is made. Such return need not be made on the day required by the writ; but, it must be made at some time; Gen. Sts. c. 133, § 22; and, as it appears in this case that no returns have ever been made upon the executions, the judgment of the Superior Court is Affirmed.