Lawrence v. Pond

17 Mass. 432

Opinion

Curia.

The return of the sheriff, as to the qualification of the appraisers, cannot now be questioned.

In the cases where actions have been sued upon judgments, and maintained notwithstanding a levy on real estate, there has been some defect of title apparent upon the return. In such case the creditor is not bound to record his levy, but may waive it and avail himself of his judgment. But after seisin is delivered by the sheriff, under a lawful levy, which devests the title of the debtor, the creditor cannot waive his levy, and resort to his judgment.

If in the case of Ladd vs. Blunt, the defendant, in place of demurring to the replication, had filed a rejoinder alleg- [ * 435 ] ing * that the creditor had neglected to record the execution and levy, the judgment might have been different from what it was.

Plaintiff nonsuit.