Metcalf v. Gillet

Hosmer, Ch. J.

The plaintiff claims title under an execution, and the only question in the case, is, whether it was duly levied. The appraisers of the land levied upon were legally appointed ; and their appraisement, in the sheriff’s return, is set forth in the following words : “ On a view of said described premises, on which the execution had been so levied, the appraisers did, upon their oaths, appraise the said premises at the sum of 48 dollars, 70 cents, per acre, as the then present true and just value thereof to the creditor in this execution.” It does not appear by the return of the officer, that the appraisers made an estimate of the land levied upon in writing under their hands, or either two of them, and the same delivered to such officer ; and on the ground of this omission in the return, an objection is made to the plaintiff’s title. At the trial, the plaintiff offered to prove, that the appraisers made an appraisement under their hands of the land aforesaid, and delivered the same to the officer, before the land was set off, which he delivered to the defendant, to be redrafted and signed by the appraisers, and offered to produce the certificate in court ; but the testimony was ruled out, and a verdict directed for the defendants.

I will, first, consider the necessity of the appraisers’ certificate in writing ; and then, whether it is indispensible, that it should, by the officer's return, appear to have been made, and delivered, before the land was set off.

At common law, a title in land could not be acquired, by the levy of an execution. By the statute formerly existing, and recently repealed, p. 282. ed. 1808. it was provided, that executions might be levied on the land of the debtors ; and the value of the same being estimated by appraisers, appointed in a prescribed mode, that the indorsement of the officer made and recorded with the execution, should give title. His return was alone necessary to shew, that all the requisites of the law had been observed Pendleton v. Button, 3 Conn. Rep. 406 . At the late revision, the General Assembly, in view of the former *403 act, with all its benefits and mischiefs, thought proper to prescribe a rule of evidence relative to the appraisement of land on execution. After designating the mode of appointing the appraisers, the law proceeds thus : “ which appraisers, being sworn according to law, shall make an estimate of such land or real estate, according to its true value, in writing under their hands, or either two of them, and the same deliver to such officer ; who shall thereupon set out to the creditor, by metes and bounds, so much of the lands as may be sufficient, at the appraisal, to pay the debt on the execution, and the lawful charges.” St at. p. 57. tit. 2 sect. 57. It must not be forgotten, that the only way, in which title can be acquired to land, by the levy of an execution, is, by an observance of all the requisites of this positive law. The common law gives no such right ; the former act is repealed ; and the legislature had authority to prescribe, and have prescribed, the only manner in which the real estate of a debtor may be taken from him. The act has declared, that the estate shall be appraised, by indifferent freeholders of the town where the lands lie. It would seem reasonable, if both creditor and debtor should agree upon appraisers from a different town, that this should be sufficient ; but it was correctly adjudged in Chapman v. Griffin, 1 Root 196 . agreeably to former decisions, that no title was acquired, by the levy of an execution on land, the same having been appraised, by persons agreed on by the creditor and debtor, one of whom did not belong to the town where the land lay. And the determination was made on this invincible reason, “ that the statute is express, that the land shall be appraised by freeholders of the same town ; and the agreement of the parties cannot alter the law.” By this decision, the principle is recognized, that, as the title is not by act of the parties, but by operation of law, the provisions of the law must be strictly observed. The statute, in so many words, requires, that the estimate of the appraisers shall be in writing, and signed by them, and delivered to the officer; and that, thereupon, and not before, he shall proceed, by metes and bounds, to set off the land. No expression in the English language can be more explicit or unequivocal. The first and most obvious maxim of interpretation, is, “ that it is not permitted to interpret what has no need of interpretation.” Vattel, lib. 2. c. 17. s. 263. When an act is conceived in clear and precise terms, leading to nothing absurd, there can be no reason to refuse the sense, which the expressions naturally present. It was correctly said, by Marshall, Ch. J. in Fisher v. *404 Blight, 2 Crunch 390. that “ Where only a political regulation is made, which is inconvenient, if the intention of the legislature be expressed in terms, which are sufficiently intelligible to leave no doubt in the mind, when the words are taken in their ordinary sense, it would be going a great way to say, that a constrained interpretation must be put upon them, to avoid an inconvenience, which ought to have been contemplated in the legislature when the act was passed, and which, in their opinion, was probably over-balanced, by the particular advantages it was calculated to produce.” And in the case of Curtis v. Hurlburt, 2 Conn. Rep. 315 . it was observed, by the late Ch. J. Swift, that ” Where the meaning of the statute is plain and evident, we must construe it according to its words ; and it never can be admitted to give a construction to a statute different from the import of the words, from a conjecture, that the legislature had a different meaning.” The act in question is a remedial law ; and, so far as relates to the certificate of appraisers, a statute of evidence. A mischief must have been supposed to arise from the ore tenus communications to the officer of an appraisement of land on execution ; and to correct this, the law now existing has specifically required, that it shall be in writing, signed by the appraisers, and delivered to such officer, before he shall set off the land. This written evidence is made indispensible, and is the only medium, through which the officer can know the value of the land. I consider it as necessary under the statute concerning executions, as the same species of evidence is, under the statute of frauds ; and for precisely the same reason. There is no ground for the assertion, that the evidence required, is matter of form. It is as much of substance, and equally to be respected, as any other provision of the law. It follows conclusively, that until the officer is possessed of the appraiser’s certificate, duly executed, he cannot set off land on execution.

The return of the officer is the legal and only evidence, that the prescriptions of law have been complied with. The object of it is. to shew to the debtor, that his land is transferred, and debt extinguished ; and to all the world, that the title is vested in the creditor. To this end, it is indispensible, that it exhibit proof of compliance with every necessary fact, and when this exhibit is made, that it should be conclusive. The return can neither he extended nor diminished, by testimony ore tenus ; for this would be, virtually, to annul it, and put every execution title in jeopardy ; or to make a title, when none has been *405 made, by legal evidence. The general nature and object of a return ; the subject matter in the particular case ; and the law requiring an indorsement on the execution of the facts,—all concur in demonstrating the above proposition. As an agreement for the sale of land cannot rest partly in writing and partly in parol; (Parkhurst & al. v. Van Cortlandt, 1 Johns. Chan. Rep. 273.) so a fortiori the title to land by execution cannot rest in part on the return, and partly on verbal evidence. It is indispensible, that the return of the officer should comprise all the requisite facts ; and they must appear expressly, or by necessary inference. The assertion in the return, that the land was appraised, is no more than was necessary to a compliance with the former laws, when no written evidence was required. It is no evidence, that the appraisement was in writing; that it was delivered to the officer ; and much less, that it was delivered before the land was set off. If such an affirmation were held sufficient, it would imply that the law is unchanged, and would, virtually, operate a repeal of the existing statute. Both public and private convenience unite with established principle in demanding, that the return should demonstrate, with reasonable certainty, every legal requisite to have been observed ; and nothing ought to be assumed by conjecture.

It is clear, that the return of the sheriff on the execution, at the foundation of the plaintiff’s title, is deficient in a necessary requisite ; and that it cannot be aided, by parol testimony.

Peters, Brainard and Bristol, Js. were of the same opinion.

New trial not to be granted.