Bissell v. Nooney

Park, J. Two questions are made in this case. One grows out of the attachment of the land in question, and the other arises on the levy of the execution upon the land. We will consider them in their order. The land in question was attached on the tenth day of February, 1842, at half past ten o’clock in the forenoon of that day, in a suit in favor of one Harvey Bissell against one Andrew Denison, who was then the owner of an undivided moiety of the land subject to a life estate in one Susan Denison. On the same day Andrew Denison conveyed by deed all his right, title and interest in the land to Susan Denison, but at what hour of the day the deed was executed does not appear, further than that the deed was left for record at the office of the town clerk of the town wherein the land was situated at twenty-six minutes past four o’clock in the afternoon of that day. From these facts we are required to determine which of the two had priority. Yery little can be said upon this question. If the deed was executed at any hour on that day no doubt it was left with the town clerk within a reasonable time after its execution ; but what evidence is there beyond the merest conjecture that it was executed previous to half past -ten o’clock in the forenoon of that day? It is said that it is unusual for a person receiving a deed to send it immediately to the office, of the town clerk, but this we apprehend depends altogether _ upon circumstances. The attachment is prior to the deed upon the records of the town. It is prior in regard to the first knowledge we have of each, and we think should be regarded as prior in fact, in the absence of all evidence to the contrary. The remaining question is in relation to the levy of the execution. The defendant claims that the levy was void, because it does not appear from 'the return of the officer who served the execution, that he described the land by metes and bounds, and set out to the creditor an undivided moiety of the [418] same, subject to the life estate of Susan Denison, in part satisfaction of the execution. We fully agree with the counsel for the defendant, that the levy was void unless the return of the officer shows that this was done. The question then in this part of the case is one of construction of the officer’s return. It is not necessary that the officer should use technical precision in describing the acts performed by him; it will be sufficient if it appears by ,a reasonable construction of the whole return, or by necessary inference from the facts stated therein, that every thing required by the statute to constitute a valid levy has been performed. Booth v. Booth, 7 Conn., 350; Brace v. Catlin, id., 361, note; Whittlesey v. Starr, 8 id., 134 ; Peck v. Wallace, 9 id., 453 ; Adam v. Litchfield, 10 id., 127; Backus v. Danforth, id., 297 ; Johnson v. Huntington, 13 id., 50 ; Finch v. Bishop, id., 576. The land must be set out to the creditor; that is; it must be located, identified, described by metes and bounds, and its appraised value applied in full or partial payment of the execution, as the case may be. Booth v. Booth, supra. In this case the return shows fully and clearly that this was in fact done. The land is particularly described by metes and bounds, and the debtor’s interest therein is correctly and fully stated, and its appraised value was applied in partial payment of the execution. What more could the officer have done to set out to the creditor the undivided moiety of the land owned by the ■debtor subject to the life estate ? It is true he does not state in his return in so many words that he did this; but he states fully what he did, and the acts he performed show that he did in fact set out to the creditor the undivided- moiety subject to the life estate. An officer must state the acts that he performed, for it is the thing done that is important. It would not be sufficient for an officer to state in his return, “ I set out the land by metes and bounds to the creditor, &c.,” and stop there; but he must narrate the acts performed, so that the law can be satisfied whether this was done. Whether in a given case the land has been set out is a question of law, not depending upon the statement of the [419] officer that this was done, but upon the acts performed by him in levying the execution. We are satisfied that the execution was duly levied, and therefore advise the superior court to render judgment for the plaintiff. In this opinion the other judges concurred.