Galusha v. Sinclear

Hutchinson, C. J., after stating the case, delivered the opinion of the Court. — The decision of the county court was correct, in admitting the deed from the defendant to Dixon. The ac-knowledgement is in due form, except, that it is without a date as to the year. But the deed and acknowledgement are both regularly recorded. The deed bears date May 14, 1811. It was acknowledged May 14, without stating the year. It was received for record, and recorded May 29, 1811. Of course,all must have taken place in May of the same year, 1811. This must be good, especially,as the defendant sets up no claim under any title, that accrued while the time of the acknowledgement remained uncertain. Several objections were made to the levy of the execution in favor of the plaintifl against Dixon, which was read in support of the plaintiffs right to recover. These relate to the want of a demand of the money before the levy; the want of notice to Dixon to appoint appraisers; the regularity of the oath administered to the appraisers/ the description of the land, and privileges contained in the levy ; and a supposed impossible date to the recording of the execution and levy. The officer states, in his return, that he repaired to the usual place of abode of said Dixon, the judgement debtor, in said Jeri-co ; and Dixon being absent from home, and gone to parts unknown, he made-demand of the money,'&c., of the wife of Dixon, &zc., and, by direction of Galnsha, the creditor, he extended said execution upon one equal, undivided fourth part of a piece of land in Jerico, containing one acre and three fourths of an acre, and bounded as follows : he fixes a very definite corner to begin at, on the south side of a certain road named, thence running sixty degrees west on said road nine rods and ten links to the corner of the Dixon garden, thence south 29 degrees east fourteen rods-toa stake, and so on to the place of beginning ; with all the privileges and appurtenances thereto belonging, with the saw-mill thereon standing, together with its privileges, as described in a deed from Truman Barney to Joseph and Samuel Sin-clear. And the said parties, their agents and attornies,neglecting to choose appraisers,he applied to a justice of the peace of the same county, &c., who appointed three appraisers. This appointment is also certified by the justice on the execution. The officer says in his return, “ which appraisers being duly sworn by me agreeably [398] to law, did on view, &c., appraise,” &c. This levy bears date January 17, 1828. The town clerk’s minute, uponthe execution, of his recording it, is dated January 17, 1827. The county clerk’s certificate of his recording bears date January 19, 1828. This Court consider, that, Dixon being absent, the demand made at his house, for the payment of the execution, was all that the law requires. It might be made there, and be sufficient, without more; and the officer’s saying that he demanded of Dixon’s wife, does not vitiate. It may be considered as surplussage. Dixon’s absence to parts unknown, also, rendered unnecessary any notice to him to appoint appraisers. And there is no intimation that he left any agent or attorney with authority to make such appointment, unless it be his attorney in court whose name is certified by the clerk on the back of the execution. It is not a matter of course, that this attorney has authority to appoint appraisers in such case. His being employed to manage the suit does not give him any such authority. It is a different business, requires different skill, and requires a knowledge of the judgement of men, which he as attorney may not possess. The officer was under no necessity to call upon this attorney to make such appointment. The objection, that it is uncertain what oath was administered to the appraisers, seems rather refined, when the officer has certified, that they were duly sworn by him agreeably to law. This very strongly asserts that he administered to them the oath in such case by law prescribed. The law having fixed what oath shall be administered in such cases, the general assertion of the officer is sufficient. The objection to the description of the premises is fully answered upon the principle, that that is certain, which can be rendered certain. The uncertainty here is, that the officer says, “running from the place of beginning sixty degrees westwithout saying north or south sixty degrees west. But the place of beginning is very definite, and is in the south side of a road about which there is no uncertainty. And this sixty degrees west is to run in the south side of said road nine rods and ten links. This can be done by any person. Furthermore, this nine rods and ten links is to reach to the corner of the Dixon garden. Hence, running westwardly from the place of beginning nine rods and ten links on the south side of said road to the first corner of said garden, that comes in contact with the south side of said road, cannot fail to be the true boundary. If there were any difficulty in this it would be obviated by going to any of the several boundaries named in the survey and surveying back to the place of beginning. [399] It is farther urged, however, that it does not sufficiently appear what privileges are levied upon, as contained in the deed from Barney to the Sinclears. That deed is of record, and a reference to it shows the privilege to be definite, to wit: that of erecting a dam on or against the premises so high as may be convenient, without flowing the works above, and of taking water for any machinery, other than a grist-mill, which neither party may erect without paying the other two thousand dollars. This leaves no such uncertainty as should hurt the levy. With regard to the certificates of the recording of the levy, the obvious mistake in writing 1827 for 1828, can injure no one. Its being recorded in season answers the requisitions of the law. While the return bears date January 17, 1828, and is recorded by the county clerk the 19th of the same January, the certificate of the town clerk, that he recorded it January 17, 1827, thus carrying back the recording a year before the existence of the thing recorded, can but be a mistake ; and the mistake is the wrong way to admit a doubt of the records being made in season. It was further objected, that the levy ought to have been made upon all the interest of Dixon in the premises, and noton an undivided part of said premises. The debt being large enough to cover the whole of Dixon’s interest, the levy is correct in this respect, as it now is. If the debt had been much less than Dixon’s interest, still the levy must have been upon such an undivided part of the whole premises, as the amount of the execution and cost bore to the value of the whole premises. The creditor could not, by levying upon Dixon’s half of one acre of the premises, have prevented the other tenant in common from claiming such a division as would have fallen to his-lot if no levy were made. The levy might have been good after a partition made, if that partition placed the part levied upon to the share of Dixon. But a creditor must not be compelled so to levy as to assume the risk of having his title pressed down by that of the other tenant in common with Dixon. These exceptions to the decision, admitting the levy, are overruled. With regard to the exclusion of the testimony, offered to prove, that notice was not given to Dixon or his attorney to appoint appraisers, the decision upon this point was correct. The offer was not to show some known agent or attorney, legally authorized to act, and he not notified ; but merely to show, that neither Dixon nor his attorney in the suit were notified. Dixon’s absence, and [400] the want of authority in his attorney of record, furnish a full rea-~ son for excluding the testimony. With regard to the lien for repairs made by defendant upon~. the common property, we recollect no law, that will imply such lien; and the case states no contract creating such a lien. If there were such a contract, it would need to be in writing and of record to be valid against an attaching creditor. The testimony upon this point was correctly excluded. The only remaining point, urged in argument, is the excluding testimony to show an erasure of an indorsement of eighty dollars from the note upon which the plaintiff recovered his judgement against Dixon. If Dixon would seek a remedy for this erasure, now after judgement, it must be by a petition for a new trial under our statute. He could not attack the judgement in this collateral manner. But the defendant has shown himself in no'situation to attack this judgement by petition, or in any other way whatever. The judgement of the county court is affirmed.