Bucknam v. Lothrop

Massachusetts Supreme Judicial Court
Bucknam v. Lothrop, 91 Mass. 147 (Mass. 1864)
Metcalf

Bucknam v. Lothrop

Opinion of the Court

Metcalf, J.

By the Rev. Sts. c. 73, §§ 22, 23, on which this case is to be decided, the levy of an execution on real estate “ shall be considered as made at the time when the land is taken; ” and the officer is required, in his return or certificate of his doings, indorsed on the execution, to set forth “the time when the premises were taken in execution,” and also various proceedings in completion of the levy. In the present case, the return of the officer states that he seized the real estate on the 29th of January 1855, and caused three disinterested and discreet men to be appointed and sworn as appraisers thereof, and that they appraised it at the sum of three hundred dollars, and set it off, by metes and bounds, to the execution creditors, to hold to them, their heirs and assigns, forever. Annexed to the return, and as a part thereof, are the oath of the appraisers, administered by the officer, as authorized by St. 1852, c. 1, § 3, and also the appraisers’ certificate of their doings. This oath and this certificate bear date February 24th 1855. That, therefore, is to be taken as the day when the levy was completed. But, by the express terms of the statute, it is to be considered as made on the 29th of the preceding January. When completed, it operated, by relation, from the time of the seizure. Hall v. Crocker, 3 Met. 245. Hall v. Hoxie, Ib. 251.

It was right in the officer to compute interest on the amount of the execution from the day of the rendition of judgment to the day when the levy was completed. Taylor v. Robinson, 2 Allen, 562. Parker v. Osgood, 3 Allen, 487. And we cannot find that, on such computation, accurately made, he committed any error in levying the execution on the whole land, appraised *149at three hundred dollars, in satisfaction thereof and of his own fees. The fees of the appraisers must be held to be those which the officer taxed, and not those which they put down in their certificate. Exceptions overruled.

Reference

Full Case Name
Jesse Bucknam & another v. Barnabas Lothrop
Status
Published