Benedict v. Heineberg

The opinion of the court was delivered by Barrett, J. Executions extended and levied upon real estate, with the return of the officer thereon, are to be returned into the office of the clerk of the court from which they issued, and are there to be recorded. Gen. St., ch. 47, § 23. Before being returned into that office, such executions with the officer’s return are to be recorded in the town clerk’s office of the town in which the land levied upon is situated. Ib. It is the officer’s duty, in making and perfecting the levy, to cause such execution, and the return showing that he has made such levy, to be recorded in the town clerk’s, office, and also to deliver said execution and his return endorsed thereon of what he has done under said execution, by way of, making the levy thereof, to the office of the clerk from which it issued. All the officer’s acts by way of making the levy, including his statement of those acts in what is called his return, are official. The execution with his return becomes a record in the county clerk’s office. The record prima facie proves the official acts recited in it; and an authenticated copy is the evidence of such a record. This record shows that the sheriff caused the [236] execution of Miss Page to be recorded, on the 16th day of March, 1864, in the town clerk’s office of Burlington. It is so stated by him in his return. There is embraced in this record the certificate of the town clerk of his having received for record on the 16th day of March, 1864, and of his having recorded the execution and levy in his office on that day. In Hubbard v. Dewey, 2 Aik., 315-16, Judge Hutchinson said, “ There is no statute that expressly requires the town clerk to certify upon a deed or execution that they have recorded the same, nor that makes any such certificate evidence of the fact; but the practice has always been for them to make such certificates, and the same have been received as prima facie evidence of the fact,” &c. “ The most natural prima facie evidence of such recording is a certificate of each clerk upon the execution by him signed, that he has recorded it, according to the usual entries thus made upon deeds by the several town clerks.” That case is cited in the present argument against the record in this case being evidence that the execution and levy were recorded in the town clerk’s office within the time prescribed by the statute. It was only decided in that case that a copy of the execution and levy from the town clerk’s office, and a copy of the same from the county clerk’s office,. were evidence to prove the fact of the execution and levy having been recorded in the respective offices aceording to the requirements of the statute. It was not decided that a copy of the record of such execution and levy in the county clerk’s office showing, by the certificate of the town clerk as well as by the officer’s return, that the execution and levy were duly recorded in the town clerk’s office, were Dot evidence of that fact. Nor in the nisi prius case of Paine v. Hathaway, referred to by Judge Hutchinson, was it held that such a record would not be evidence of that fact; but only that a regularly attested copy of the execution and the officer’s return of his levy, and of the town clerk’s certificate of his having recorded the same, produced from the county clerk, was not evidence to prove the fact of the recording in the town clerk’s -office. No wider scope can prop [237] erly be given to the ruling in that case than is required by the account given of it by Judge H.; nor, if the present case stood upon the same point of the ruling in that case, should we feel much controlled by that ruling, it having been made in the progress of a jury ferial. We do not feel pressed with the i’emarks of Judge Hutchinson, predicated upon the anachronism involved in the sheriff’s stating in his return that he had caused the execution with his return to be recorded in the town clerk’s office. The statute—Gen. St., ch. 47, § 23, contemplates just that;—but obviously it did not contemplate that his return thus recorded should state more than had been done up to the time of causing the execution and return to be recorded. His official custody of the execution continued till he had returned the execution, fully executed, so far as his duties were concerned, into the office from which it issued, and it was his province to endorse, by way of return, all his official acts down to the moment of delivering finally the execution into the clerk’s office. It was his province and his official duty, after he had caused the execution and his return of the levy to be recorded in the town clerk’s office, to state that fact as a part of his return, before delivering it back to the county clerk. This was so done in the present case, and involves no anachronism. So far, then, as this fact is concerned, his return would be evidence of it, and when made matter of record in the county clerk’s office, an authenticated copy of that record would also be evidence to the same intent. We hold then that by reason of the record’s showing, both by the certificate of the town clerk and the return of the officer, that the execution with the officer’s return was duly recorded in the town clerk’s office, such record is prima facie evidence of that fact. The record shows, without resort to the officer’s return, that the execution was duly returned to the county clerk’s office and there recorded. So we have no occasion to further consider the question made in the argument, whether that fact could be shown by the officer’s return. The substantial question is, whether the property was subject to levy at the time it was levied on by the Page execution. [238] We do not regard it necessary to decide whether the road-bed and depot grounds owned in fee by the railroad company, may or may not be privtheged against the executions of creditors under certain circumstances. In this case the exemption is claimed on the ground that at the time of the Page levy the use of the land for road-bed and depot accommodations had not been wholly discontinued and abandoned prior to said levy. We think the report shows that such use had been thus discontinued and abandoned both in fact and intent. It is true the company held possesssion—but this was incident to their title and ownership of the property. They were not holding it in use for any purpose of public service, nor for any purpose of use as a railroad. The only use the company put it to was in exercise of means and measures to get rid of its character as a railroad, viz : to take up and carry away the rails, and to get terms with the town as to obligations touching street bridges, as affected by the complete abandonment of the old track as a railroad. “ While the possession was thus held, it was without any intention of ever using it for the purpose of a public railroad.” The judgment is affirmed.