Morton v. Edwin

The opinion of the court was delivered by Bennett, J. The first question relates to the admissibility of the parol evidence, which was offered to show the true time, at which [80] the execution was recorded in the office of the justice, from whom it issued. In the case of Olmstead v. Hoyt, 4 Day 436, it was held, that parol evidence was admissible, to show the actual time of praying put a writ, though it contravened its date ; and the same decision was had in Parkman v. Crosby, 16 Pick. 297; and in Connecticut it seems well established, that the return of an officer, whether on mesne or final process, is only prima facie evidence, and may be disproved by parol; Dutton et al. v. Tracy, 4 Conn. 79; Watson et al. v. Watson, 6 Conn. 334. In the case of Burton v. Pond, 5 Day 162, which was an action of ejectment to recover land set off on execution, the town clerk had endorsed on the execution, these words, “Received for record the 15th day of .Tune, 1809, and recorded by -Clerk.” Yet it was held, that the true time, when the execution was recorded, might be shown by parol. The case of Isaacs v. Chandler et al., decided in our own • court, Lamoille County (1842) is a full authority for the decision of the court below. See Carpenter v. Sawyer et al., 17 Vt. 122. In Hubbard v. Dewey, 2 Aik. 312, it was expressly held, that the respective certificates of the town clerk and magistrate, or clerk of the court, that they have recorded the execution, are but prima facie evidence and may be rebutted. The evidence in this case shows, that the execution was not recorded in the justice’s office, until after this suit was commenced. The important inquiry is, shall this defeat the present action ? The statute provides, that “ All executions, extended and levied upon real estate, with the return of the officer thereon, being recorded in the office wherein deeds of such real estate are required by law to be recorded, and also returned into the office of the clerk of the court, or justice, from whom such execution issued, and there recorded, shall, as against the debtor in such execution, his heirs and assigns, make a good title to the creditor, his heirs and assigns forever.” Rev. St. 240, § 17. It has always been held, that, to pass the title to real estate under a levy of execution, the statute must have been strictly complied with. It is a proceeding in invitum, as was said in Mitchell v. Kirtland, 7 Conn. 229, and in derogation of the common law. Hence all the statute requisites to the passing of the title must have been complied with. They are in the nature of conditons precedent. The record [81] ing of the execution in each of the offices is as much a prerequisite to the passing of the title, as the levy itself. The question raised in this case can hardly be considered an open one in this state. In Hubbard v. Dewey, 2 Aik. 312, it was expressly held, that the title does not pass, until the execution has been recorded at length in both offices; and this has been the doctrine of our courts as often as the question has come before them. See Hall v. Hall, 5 Vt. 304. Downer v. Hazen, 10 Vt. 418. The same doctrine has been established in Connecticut, under their statute, which is similar to ours. Burton v. Pond, 5 Day 162. Coe v. Stow, 8 Conn. 536. It is said in argument, that the recording the execution in the justice’s office should, by fiction of law, have relation back to the time it was received and filed for record. But a legal fiction is always consistent with equity, and will never be permitted to work á wrong, contrary to the real truth and substance of the thing. The plaintiffs had no title, when they commenced the suit; and there was no eviction, or adverse holding, by the defendant. It would be strange indeed, if all this could be supplied by legal fiction. The defendant is neither party or privy to the proceeding; and a fiction of law will not be adopted to the injury of such person. 5 Day 162. 8 Conn. 536. In the case of a deed, the title passes by the deed, and the only object of the recording is notice. In. such case, the recording may well have relation back to the time the deed was received and filed by th'e town clerk for'record. It has been argued, that it is essential to the passing of the title, that the execution should have been recorded in the two respective offices in its life. In the case of Hubbard v. Dewey, 2 Aik. 312, it is said, it was held to be the duty of the officer to procure the execution to be recorded, not only in the. town clerk’s office, but also in the office from which it issued; and in Hall v. Hall, 5 Vt. 304, it is said, the court advance the doctrine, that it is absolutely necessary, that some period should be definitely fixed, in which the doings of the officer should be completed and the rights of the parties fixed. That all this should be done being necessary to the passing of the title, it is claimed that it must be done within the life of the execution ; and if not, we are asked, when shall it be done ? And after what lapse of time shall it be too late to complete the records, so as to divest the debtor of his title 1 [82] It is also said in argument, that the debtor’s equity of redemption only runs from the time the legal title'passes from him, and that the crédito:- would not be entitled to possession until six months from the time the debtor is divested of his title; and if the officer might, at any convenient time after the execution had run out, cause it to be recorded in either of the offices, “ no certain period ” it is said, “ could be definitely fixed, in which the doings of the officer should be completed and the rights of the parties fixed.” Though there appears to be much weight in the argument, yet we do not find it necessary to pass upon the question, notwithstanding the counsel have argued it at length. To sustain ejectment, the plaintiff must have title, both at the commencement of the suit, and at the time of trial. We all agree, that the recording the execution at length in both offices was essential, and a prerequisite to the passing of the title under the levy. As this was not done, when this suit was commenced, the judgment of the county court must be affirmed.