Dodge v. Prince

4 Vt. 191

Opinion

The opinion of the Court was pronounced by

Thompson, J.

The plaintiff claims title to the premises under the levy of an execution'; and whether this levy, as it appears in ■the officer’s return, be regular or not, is all we have to decide.

'The first objection to this levy is, that it does not appear that the appraisers were sworn to appraise the land at its just value at the time of their appraisal. We think the necessary intendment, from the officer’s return, is, that the oath'bound them'to appraise, and that they did appraise, at its then value.

The second objection to the levy is, that the officer did not call upon the attorney of record to appoint appraisers. With regard to’this objection, the return showing that the debtor was absent from the state, a demand at his last usual abode in the state was sufficient. And, indeed, a demand could not, under the circumstances, be made in any other way. The attorney on the execution is not-an attorney or agent within the meaning of the statute. He is attorney merely for the purpose of prosecuting or defending the suit to judgement, and receiving payment: and his discharge of the execution without receiving payment would not be binding on his client. This point was decided by this Court at Burlington, at the recent term, in the case of Galusha vs. Sinclair.

Footnotes

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The other point, relied upon by the defendant, involves very serious difficulties. The appraisers w'ere appointed by a justice of the peace, and yet the return of the officer does not show that he was such a justice as might judge between the parties in civil causes. That he should be such, is the express requisition of the statute. At an early day, the form of a levy was prepared and published by an eminent jurist Judge Chvpman : and that form has been generally followed by officers ; and the title to such an rmmence amount of land depends on levies, made agreeable to that form, that courts have felt constrained to sanction them. That form, it will be recollected, describes the appraisal as made by A B, &c., “ chosen, appointed, and sworn, according to law.” This form necessarily includes all the requisites of the statute. The objection to it is, that the officer makes himself the judge of what is agreeable to law, instead of returning the facts, that the court may judge of the law ; and this objection would be too formidable to be surmounted, if the form had been recently adopted. But the Court has not as yet' decided that a levy is valid, when the officer undertakes- to detail his proceedings, and omits a material requisite of the statute. If we dispense with this, we see no reason why, when this is not wanting, we may not dispense with any or all the others. If we consider this levy, with this defect, prima facie good, and allow it'to be impeached by parol evidence,-the same course must be adopted when other material requisites-are wanting ; and the consequence would necessarily result; that the whole burden of proof would be changed from the creditor to the debtor. It is insisted by the plaintiff’s counsel, that the officer is made judge of the fitness-of the justice. Upon this point, it may be remarked, that it does not appear from the return, in this case, that he has undertaken to judge. If his return, upon the face of it, showed a compliance with the statute, it would be presumed to be true, until proved to be false. But, in such a case, if he had applied to a justice, who was interested, or related, the fact might be shown, .and the levy thereby avoided. But there is a manifest difference between impeaching-3 levy, apparently good, and supporting one by parol, which is- apparently void. Upon the whole, we consider this objection as fatal to the levy.

The judgement of the county court is, therefore, reversed, and a new trial granted.

Williams, J., dissented.

See 3. Vt. Rep. 394.