Downer v. Hazen

10 Vt. 418

• Court: Supreme Court of Vermont
• Decided: February 15, 1838
• Status: Published

Opinion

The opinion of the Court was delivered by

Redfield, J.

In this case there is no doubt that the levy is void. Although begun within the life of the execution, it was not finished and caused to be recorded, in the office of either the town clerk or the clerk of the court, until more than four months after the execution had expired.

The passing of title to real estate, by levy of execution, from its very nature, must be considered a matter stricti juris. It admits of no latitude of construction. The title passes by operation of law, and the prerequisites must be complied with, in the manner pointed out by statute. This poult was adjudged in Hall v. Hall, 5 Vt. R. 304. The levy is most clearly void.

But we are urged not to adjudge it void, lest that should affect intervening levies. It is a sufficient answer to that objection, that those levies are not now in question and the parties to them are not before the court, and cannot be concluded by the proceedings here.

It is urged, too, that the court have, by the statute, a discretion whether to proceed in this matter, or dismiss it. We do not so consider it. The expression of the statute, “ it shall be lawful,” is synonymous^ with may, and that has always been held equivalent, in statutes, to shall. The court, then, have no alternative. They must, when the case is presented, proceed, and as they find the levy sufficient or not, affirm or vacate it.

As this levy is void, we so adjudge, and the creditor will be permitted to take his execution anew. Whether his lien will be preserved, or not, is not now to be considered. How far vested titles to real estate, can be affected by legislative action, having a retrospective operation, is a grave question, but not properly arising on this petition.