Burton v. Pond

5 Day 160

Opinion

Smith, .1.

This was an action of ejectment ; a;ul the plHÍntills claimed title iiv virtue ol’i'ic levy of an execution. The action was Drought after the execution was returned to the office of the clerk of the County Court, from whence it was issued, and before it was recorded at full length. An. entry was made on the hack of the execution, in these winds : “ Received for ricord, (lie 15th day of June, 1809, and recorded by John H. Lynde, Clerk.”

The court below', admitted parol evidence to prove the fact, that the execution was not recorded at full length, when the present action was instituted; and thereupon decided, that a copy of the record, could not be given in evidence to the jury.

The question for this Court to determine is, whether the Superior Court erred in admitting the parol .evidence, and rejecting the copy of the record ? The levying of executions on lands, in'payment of debts, is solely authorized by statute ;

(a) there is no common law on the subject. The statute is, therefore, our only guide; from which we find, that the recording an execution in the office of the clerk of the court, from whence it issued, is an essential requisite to the completion of a title ; as much so, as any other fact relating to the levy or return of it.

And the fact as to the time when the execution was actually recorded, may he proved by parol testimony. There is no room for the application of the doctrine of relation, in this case. The action was commenced without any title to the land in question ; — there was, then, no ouster; — no adverse bolding; no wrong ; and the plaintiffs had no rights all this cannot be supplied by the doctrine of relation.

New trial not to he granted,

Stat. Conn. tit. 63. c. 1. s. 6.