Parker v. Parker

The opinion of the court was delivered by

This case is a petition under s. 1596, R. L. to vacate the levy of an execution extended upon real estate. The execution was not recorded in the town clerk’s office, nor returned to the office of the clerk signing it, within sixty days from the date of its issue. The levy was therefore void ; cases cited in Rob. Dig. 317, s. 121. The question arises, whether proceedings under s. 1596, R. L., are,applicable to a levy that is void. The statute extends to cases where “ the extent or levy is irregular, informal, or not made according to law, so that the title derived therefrom is doubtful ” ; and provides that this court may on petition, vacate such extent, and issue execution anew. We think that this section was intended to provide a remedy for such defects in the proceedings as render the title under a levy doubtful. It is immaterial whether such defects appear upon the face of the levy or not. *343Hyde v. Taylor, 19 Vt. 599; Briggs v. Green, 33 Vt. 565; and has no application to those cases that are defective in substance as to the subject-matter. Bell v. Roberts, 13 Vt. 582 ; Hopkins v. Hayward, 34 Vt. 474. In case of a levy absolutely void, it cannot be said that the title is doubtful; there is no title ; none passes under such a levy. ' Section 1598, R. L. provides that where no petition under s. 1596, is brought to vacate the extent and issue execution anew, within two years from the time the extent was returned, that the extent shall be valid to convey the title the debtor had in the premises, at the timé of the extent, and conclusive evidence of the title in such estate, against the debtor and his representatives. The necessary result of holding that we have jurisdiction in this case, and granting the prayer of the petitioner, is to hold that all levies, void absolutely, those that convey no title whatever, after the lapse of two yéars, become, as against the debtor and his representatives, perfectly good, and pass the estate to the creditor, notwithstanding intervening conveyances and attachments. To do this would be going beyond the statute; and to so hold, independent of the statute, would be in conflict with adjudications, that lapse of time of itself, does not cure a void levy.

Petition dismissed with cost.