Huntington v. Burt

18 N.H. 276

• Court: Superior Court of New Hampshire
• Decided: July 15, 1846
• Status: Published

Opinion

Woods, J.

It has been held that an amendment, made by an officer of his return on a writ, cannot affect the rights of persons not parties to the proceedings, who have acquired an interest in the property before the amendment, and without notice of the error. Hovey v. Wait, 17 Pick. 195; Emerson v. Upton, 9 Pick. 167; Means v. Osgood, 7 Greenl. 146.

The doctrine of Whittier v. Varney, 10 N. H. Rep. 291, is, that where there is any thing to amend by ; that is, where there is, upon the face of the proceedings, that which shows that probably to have been done which it is sought by the proposed amendment to indicate more clearly and with more exact formality, there is no injustice in allowing the amendment. On the contrary, the injustice would be in refusing an amendment to confirm a title, sufficiently notified upon the public record, to put parties upon their inquiry, and to charge with a sinister purpose one who, with such indications of a compliance with the legal requirements, should purchase of the prior owner. The language used in that case is this, “If they (the purchasers) have inspected the record, or return, and are in fact advised of its contents, there is little justice in permitting them to take advantage of some trifling omission in the return of the officer, and then subjecting him or the creditor to the loss of the debt, in cases where, from what does appear in the return, they must be convinced that the officer had probably performed his duty, and made in fact a valid extent, but had, through inadvertence, omitted to make his return perfect.”

In Haven v. Snow, 14 Pick. 28, the amendment was made by the contemporaneous memorandum of the officer, and was justified by the constructive notice of the attachment, with wffiieh the party whose title was defeated by the amendment was charged. The present case differs in some respects from those which have been cited. But it seems, nevertheless, to admit the application of the same rules; and if there is, in the sense that has been indicated, any thing to amend by, there seems to be no objection to allowing an amendment to be made.

By the omission of any description of one of the side lines of the lot No. 10, the third course described in the return becomes a diagonal line, extending from the third monument named to the point of beginning. This line is very clearly denoted by the monuments which terminate it, and which control the course and distance which arc inserted as description. But if we look at the line as described by its course and distance, we find that it is parallel to the second line laid down in the description of the land, and of about the same length with it. "We also find that the four lines would embrace a tract of one hundred and sixty acres, which is the quantity denoted in the return, and that that tract is identical with the lot No. 10, which is the same that the return assumes to set off and convey to the creditor in satisfaction of the execution.

It would be difficult for one reading this return for the purpose of ascertaining what land was comprehended in it, not to perceive that it was probably the intention of the officer and of the appraisers to set off the whole of lot No. 10, and not a triangular half of it, described by a rigid application of the technical rules which have been settled for the purpose of reconciling conflicting descriptions. It is difficult to suppose that a purchaser, informed in general terms of the liability of these returns to be amended for the protection of public officers, could have been misled by the record as to what the parties really intended to embrace in the levy. Indeed, it would be easy to believe that in taking the conveyance of the land such purchaser might have intended to take advantage of a mistake, to the prejudice either of the creditor or of the officer. We are, therefore, of the opinion that the case is one in which the court may, without prejudice to any one, inquire as to what was in reality done by the officer and the appraisers; what land was shown to the appraisers, and what land did they appraise, to be of the value of the sum satisfied upon the execution ?

The result of the inquiry is, upon the evidence which has been submitted, perfectly clear. There can be no doubt that the whole of lot No. 10 was intended to be comprehended in the levy, and that the discrepancy in the parts of the description is due to the omission- in copying the third course, as laid down in the minutes furnished by the surveyor.

It has been urged, in the argument for the tenant, that the eases in which amendments have been allowed, have been these in which, but for the correction of the error, nothing would pass by the levy or public sale; that in the present case the proceedings were sufficient to pass one half the lot. But the general policy which accords to public officers, in the discharge of their functions, this kind of protection, would be but imperfectly satisfied if such a distinction were to prevail. If,' through a clerical error of the officer, the creditor has been made to take one half the lot, where he would have been entitled, but for the error, to the whole, the officer would as clearly require the protection of this rule of practice, as if, by a like error, nothing whatever had passed, and the creditor so deprived of the benefit of the levy.

We are of the opinion that the amendment should be allowed.

Leave to amend the return.