Pendleton v. Button

Hosmer, Ch. J. The questions arising in this case, relate entirely to the title of the demanded premises. The first objection made, is to the appointment of appraisers of the land, set off on execution. Jonah Witter was a justice of the peace, and having been chosen by the creditor, to appraise the property levied on, he, on the neglect of the debtor, appointed, and gave oath to Crary and Avery, the other appraisers. It is contended, that, by these facts, the persons named became interested, or, at least, that their minds were subjected to a bias, which disqualified them from becoming appraisers. For this objection, there is no imaginable foundation : the cause is too powerless, to produce the effect supposed. It must be admitted, that a referee cannot, by any act of his own, give himself jurisdiction in a cause which he is to hear and determine ; and this point was adjudged, by the supreme court of Massachusetts, in Drew v. Canady, 1 Mass. Rep. 158.; but the decision has no bearing on the point now under consideration. The justice of the peace has not certified, that he appointed indifferent freeholders, and administered the oath ; and this is the second objection made. It was not necessary, that the certificate alluded to, should have been given. The return of the sheriff, is the usual proof of these facts, and all that is requisite. The act of the justice, in appointing and swearing an appraiser, implies that he is indifferent and unexceptionable ; and the officer is authorized to certify the facts, which, until the contrary is evinced, are deserving of full credit. In the state of Massachusetts, a similar determination, upon a statute expressed substantially like ours, has been madei “ The statute requires, that the doings on the execution shall be returned by the sheriff. If he certify, that the appraisers were duly chosen, or appointed, and sworn, and that they performed the duty assigned them, it is sufiicient.,, Williams v. Amory, 14 Mass. Rep. 28. This return of the sheriff on the execution, speaking of the appraisers, declares, that the aforesaid three indifferent freeholders, after carefully viewing the land, appraised it; and this meets and prostrates an objection made, that it does not [412] appear, that Jonah Witter was a freeholder. Although he is na|. individually described as being such ; yet this fact results, by fair construction, and inevitable inference. The statute regulating the levy of executions, provides, that each party may choose an indifferent freeholder, to appraise the land levied on, and “ if either party neglect lo choose,” the officer may apply to the next justice, to supply the deficiency. Shapley Morgan was not requested to appoint an appraiser, and from the return of the sheriff, it appears, that “he was out of the state in consequence of which, the officer applied to a justice, who made the appointment. This proceeding was regular, as the absence of Morgan rendered notice to him. impossible, and was, prima facie, sufficient to warrant the omission to apply at his dwelling. The appraisers did not go upon the land appraised ; nor was it legally requisite that they should. They were bound to appraise it, at its true value, and, for this purpose, to attend to the necessary means of ascertaining it ; but this may be, and undoubtedly was, effected, by viewing the land. They were not required to enter upon the property, and take possession. The defendant proposed to prove title to the premises demanded, to be in one Seth Stoddard, and to this end offered in evidence a deed, which had never been acknowledged in writing, with accompanying testimony, that a parol acknowledgment was actually made. This evidence was rejected ; and most correctly. It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written, witnessed, acknowledged, and recorded. Tit. 142. c. 1. s. 7. The acknowledgment, to be recorded, must, necessarily, be in writing ; and such is the invariable practice. To the record all men recur, for the purpose of ascertaining the title of lands; and to satisfy the enquiry, a written acknowledgment is indispensibly necessary. If the execution creditors knew, that the deed had been acknowledged, but that neither certificate nor entry had been made of this fact, they likewise knew, that Stoddard had no title, and that there was no impediment against the legal levy of their execution. I am of opinion, that a new trial ought not to be granted. The other Judges were of the same opinion. New trial not to be granted.