Morse v. Child

This case is in addition to a former case decided by this court betwixt these parties. The principal question in the former case was, as to the rejection of testimony by which it was attempted to prove that the demand-ant’s grantor had no title in the demanded premises, for the reason that he had agreed to cancel the deed by which he held the land, and had received a consideration for cancel-ling the same, prior to his conveyance to the demandant, and that the demandant, therefore, had no title. This evidence was overruled at the trial, and the ruling of the court was subsequently sustained, on the ground that a mere agreement to caucel a deed, without actually cancelling it, could not have the effect of a reconveyance. 6 N. H. R. 521, Morse vs. Child; 4 N. H. R. 191, Farrar vs. Farrar.

But the tenant in the former suit did not rest merely on the alleged defect in the title of the demandant, but undertook to show a paramount title in himself under a levy on execution against Moody Moore, who claimed to hold the premises by virtue of a sale of the same for taxes. The tenant’s title by levy, however, was defective, as no evidence was offered of a return of the execution to the clerk’s office, which was holden to be essential; and the ground also, taken on the same trial, that the demandant was estopped to deny the levy of the execution, for the reason that his *584grantor acted as an appraiser, was overruled — the levy having entirely failed from want of such return.

The only circumstance in favor of the tenants that is now added to the case is, that the extent under which the tenants claim the land has, since the former trial, been recorded in the registry of deeds, and returned to the clerk’s office.

If, notwithstanding this, the land cannot now be holden to have passed by that extent, the case is not altered, and the demandant must again have judgment.

It becomes, therefore, necessary to determine what constitutes a levy.on land, within the meaning of the statute.

The statute of February 15, 1791, enacted that all executions duly extended upon land, and returned into the clerk’s office out of which the same issued and there recorded, should make a good title. N. H. Latos (ed. of 1815) 181.

But the statute of November 5th, 1813, (ed. of 1815) 195, enacted that no levy should be good and effectual in law to hold, or pass the debtor’s right, against any person or persons, unless the execution be recorded in the registry of deeds before being returned : and in Sullivan vs. McKean, 1 N. H. R. 371, it was decided that nothing passed by an extent until recorded in the registry.

By the statute of July 4, 182.9, the law is changed, and an execution not recorded is good against the debtor and his heirs. The law is silent as to a return of the execution to the clerks’ files. 1 N. H. Laws 101. Under this statute the effect upon this case might have been essentially different from the statute then in force.

Whether, as the law stood when this extent was made, it was necessary to have the execution recorded by the return day is not necessary to be settled in this case. If it would not be necessary to record it then, which might not in all cases be practicable, we have no hesitation in holding that it would be necessary to record the execution as soon as the extent could be completed, or at least, prior to the next succeeding term; and if not thus recorded, the debtor would *585have a right to consider the extent abandoned. The debtor would otherwise have no means of knowledge, within any reasonable time, whether the levy-was insisted upon or not. He can know nothing of any act done except what he finds upon the record. -

But the tenants endeavor to avoid this construction of the requisitions of the statute, by contending that the subsequent proceedings of record and return are not essential to a title by levy, except as providing a mode of proof which when available will cause their levy to. take effect from the extent by the officer, and that the record and return merely enable them to give the ordinary mode of proof of a title fully complete as such prior to that time. The Massachusetts authorities furnish some ground for this position; but their statute and course of legislation on this subject differ from ours.

We know of no principle on which such construction can be given to our statute. Conveyance by levy is compulsory upon the debtor; and the full forms prescribed by the statute come in place of any action on his part, and are essential to divest the debtor of his title. Reasoning founded on analogy to other modes of voluntary conveyance, on which alone this doctrine can be sustained, is inapplicable to this manner of effecting title.

If, in this case, Moody Moore were the demandant, the extent notjhaving ⅜ been seasonably recorded and returned, B could not prevail against him. The record and return are a part of the requisites of the statute conveyance, and not being duly made the judgment creditor takes no title. The defence, therefore, by these tenants is still insufficient, and the verdict must be sustained by

Judgment for demandant.