Gilson v. Parkhurst

The opinion of the court was delivered by Royce, J. The plaintiff claimed title to the premises described in his declaration under the levy of an execution in favor of his intestate and against the defendant. The first objection made to the validity of the levy was, that it was not returned into the office of the clerk of the court from whence it issued during its' life. As evidence that it was so returned, the plaintiff relied upon the return made by the officer upon the execution. That the return of an officer upon an execution is legal evidence of everything therein recited which is within his official jurisdiction and duty, has been familiar law in this State ever since the decisions made in Eastman v. Curtis, 4 Vt. 616, and Swift v. Cobb, 10 Vt. 282. The return upon the execution states that on the 14th of September, 1878, (which was within the life of the execution,) he caused the same, with his return thereon, to be recorded in the records of land of said town of Cavendish, and thereafterwards returned the same into the office of the clerk of the court from which it issued, and caused the same to be there recorded; — and the return is dated the same 14th day of September. The return shows, that the execution was returned into the office of the clerk on the day of its date ; and it was the official duty of the officer to so return it. The court was justified in finding from the evidence contained in the [388] return, that the execution was seasonably returned to the clerk, unless there was other legal evidence before him which outweighed the evidence contained in the return, showing that it was not so returned. To show that it was not so returned the defendant introduced and relied upon as evidence, the certificate or filing made by the county clerk upon the execution, showing that it was returned into his office on the 9th day of Nov. 1878, (which was more than sixty days from its date,) and was recorded on the 5th of December, 1878. The making of said certificate or filing was no part of the official duty of the clerk. There was no law requiring him to make it, or which made it evidence when made. Hence it was entitled to no more weight or consideration, as evidence, than if made by any other person. The court was therefore justified in disregarding it as evidence, and basing his finding of the fact upon the only legal evidence that there appears to have been in the case, — the return of the officer. The evidence that was admitted tending to show that the debt upon which the judgment was rendered, and this execution was issued, .existed before the filing of the deed from Seaver to the defendant, was clearly admissible. It is not necessary, under the 7th sec. of chap. 68 of the General Statutes, which subjects the homestead to attachment and levy of execution upon all causes of action existing at the time of acquiring the homestead, that there should then be a present right of action. In West River Bank v. Gale, 42 Vt. 27, it is said in the opinion, delivered by Pier-point, Ch. J., that the statute “ exempts the homsetead from attachment on all debts except such as have an existence at the time the deed thereof is left for record.” The evidence admitted tended to show the existence of such a debt. The objection that was made to the levy as being indefinite, uncertain, and insufficient, is not tenable. The levy extended over, and embraced all the interest of the debtor in the premises levied upon. That interest was ascertainable by the return, so that there could be no difficulty in putting the execution creditor in possession. There does not appear to have been any such tenancy in common as to bring the case within the rule established [389] in the cases relied upon by the defendant, in which it has been held that the levy should be made upon an undivided part or interest. The judgment is affirmed.