M'Gregor v. Brown

It is clear from the case of Waterhouse v. Waite that it is not incumbent on the officer to cause an *174execution levied on land to be recorded.1 2But it is his du y t° enable the creditor to have it put on record. Merely not returning the execution to the clerk’s office within three months after the levy, will not in all cases subject him to damages, as appears by the case of Tobey v. Leonard.2 But there the execution was returned at the return day; here it was not; and the Court are of opinion, that it not being dulj returned so that the plaintiffs might obtain it of the clerk, the sheriff became liable, unless he should prove that it was delivered to the plaintiffs in time to have it recorded. No evidence of that sort has been offered.

We see no valid objection to the admission of the parol evidence. It did not add to, nor contradict the return, but was introduced to show that the land levied on under one description was the same as that which had been attached under a different description.

As to the right of property, it is said that the subsequently attaching creditors cannot hold the land, for that they had notice of the plaintiffs’ attachment; and the case has been likened to one in which a party has notice of a prior unrecorded deed. But the same principle does not apply in the case of a prior attachment. It does not appear that the intervening creditors knew that the plaintiffs would recover a judgment and would levy on the land; and besides, all creditors who are in pursuit of satisfaction of their debts by means of attachment, are considered as running a race on equal ground, and each is entitled to take advantage of defects in the proceedings of the others. See Cushing v. Hurd, 4 Pick. 253.1