Libbey v. Copp

By the court. It is well settled, that nothing will pass by an extent of an execution upon land, unless every thing, required by the statute to make a valid extent, is expressly stated, or necessarily implied in what is stated in the officer’s return. The statute of February 15, 1791, sec. 3, declares, that the appraisers shall be reputable freeholders and resident in the county in which the land is. As the officer’s return, in this case, does not state that the appraisers were resident in the county where the land is, it is very clear, that nothing passed by this extent. 2 Mass. Rep. 154, Eddy vs. Knapp.—14 ditto 20, Williams vs. Amory. When the court had delivered this opinion, the tenant moved the court to permit the officer to amend his return upon the execution. By the court. — Whether this return can be now so amended, as to make the extent valid, is a question upon w'hich we express no opinion. To avail the tenant in this case, it must not only be made valid by the amendment, but by relation valid, from the time when the extent was made. For if the land does not pass, until the amended return be recorded, the extent cannot be deemed a good defence to this action. Nothing has now passed by this extent. The tenant’s debt remains unsatisfied, and he may enforce the payment of it by an action of debt upon his judgment. He is in possession of tin; laud without any legal title ; and the demandmant has rightfully commenced this action, to gain possession of his inheritance. The effect of this amendment, then, if it can have any legal effect, will be to defeat an action rightfully comi'ie e.ed. In such a case, we could not permit an amendment, unless all the demandant’s costs were paid, and all [47] the tenant’s costs relinquished, up to the time of the amendment. And, under any circumstances, it would be our duty to pause, before we permitted an amendment, drawing after it these consequences. But the circumstances of this case leave no room to doubt, as to the course we ought to pursue. It is now sixteen years since this extent was made. If, after go great a lapse of time, we permit officers to amend their returns, however false the amended return may be, it will often be impossible to prove it to be so. In the case of Thatcher vs. Miller, (13 Mass. Rep. 270,) the supreme court of Massachusetts thought an amendment of a return ought not to be permitted after six years. In this case, it is very possible, that the residence of the appraisers may be easily ascertained, and truly returned ; but in other cases, it might be very difficult to ascertain, where particular individuals resided sixteen years ago. If, however, we permit the amendment in this case, we must in other similar cases; and the practice-may lead to very serious inconvenieneies. M'e are not aware,, that an amendment of this kind has ever been permitted, after so great a lapse of time : and feel ourselves -bound to overrule the motion. It is therefore the opinion of the court, that there must be Judgment for the demandant.