Firth v. Haskell

20 N.E. 164, 148 Mass. 501, 1889 Mass. LEXIS 305

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1889
• Status: Published

Opinion

Knowlton, J.

When an execution is levied by set-off upon real estate, the execution itself, with the officer’s return upon it, duly recorded, is the only competent evidence of the title acquired by the creditor. Pub. Sts. c. 172, § 22. When a levy is completed by a sale, a deed is given by the officer, which must be recorded within three months, and the return of the execution is of less importance. Pub. Sts. c. 172, § 28. Indeed, it is held in some States, that the title of a purchaser at a sale upon execution rests upon a judgment and execution which authorize the sale; that it cannot be affected by mere irregularities of the officer ; and that a return of the execution is not necessary to protect the purchaser’s rights.

But in this Commonwealth it has been decided that a return of the execution is essential to the validity of such a sale. Walsh v. Anderson, 135 Mass. 65. This return may be made a long time after the levy, and it will relate back to the time named in the writ. Prescott v. Pettee, 3 Pick. 331. Welsh v. Joy, 13 Pick. 477. Walsh v. Anderson, 135 Mass. 65.

The Pub. Sts. c. 171, § 54, and the substituted St. of 1885, c. 125, § 1,

* are applicable to this case. The officer who made the sale died without fully performing his official duty. He prepared a certificate of his doings, but he left it unsigned, and he failed to return the execution to the court. The officer who returned it was one “ who might by law have served the execution if originally delivered to him.”

If rights of third persons can be affected in any case by mere lapse of time between the service and the return of an execution upon which real estate is sold, they were not in this case.

Judgment affirmed.

This statute is as follows:

“ Section 1. When an officer has begun to serve an execution, and dies, or is incapable of completing the service and return thereof, the same may be completed by any other officer who might by law have served the execution if originally delivered to him; or in case of sickness or absence, the judgment creditor or the officer who began to serve the execution may delegate any other officer who might by law have served the execution if originally delivered to him temporarily to act for him during said sickness or absence. If the first officer has not made a certificate of his doings, the second officer shall certify whatever he finds to have been done by the first officer, and shall add thereto, a certificate of his own doings, whether the same be in part or wholly completing the service.

" Section 2. Section fifty-four of chapter one hundred and seventy-one of the Public Statutes is hereby repealed.”