Park v. Darling

58 Mass. 197

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1849
• Status: Published

Opinion

Wilde, J.

This was an action of trover for a mare, alleged to be the property of the plaintiff, but which had been purchased by the defendant at a public auction, and the question is, whether this was a valid purchase, so as to vest the property in the defendant.

It was proved, that the auction sale was by a- constable, on a justice’s execution in favor of the defendant against the plaintiff, and that the seizure and sale of the mare were returned on the execution by the constable. No objection was made to the sufficiency of the return, but the plaintiff contended that the defendant was bound to show a judgment upon which the execution issued. But the court ruled, and we think lightly, that this was not necessary. A purchaser of goods and chattels at an officer’s sale on execution acquires thereby a valid title to the property, if the officer’s return shows a compliance with the law in the sale, although the judgment and previous proceedings were irregular. Howe v. Starkweather, 17 Mass. 239, 243.

But it does not appear that there was any material irregularity or error in the proceedings. There was an entry in the justice’s memorandum book of the time of the entry of the action, of the defendant’s default, and of the judgment for the plaintiff for damages and costs as stated in the execution. The writ, which was returnable on the day of the judgment, had not been filed with the justice, but was produced at the trial, and appeared to have been duly served; and there were produced also a note and account corresponding to the debt in the judgment, and a bill of costs also corresponding to the amount thereof in the execution. These papers being verified, the justice would unquestionably be authorized to make a regular record of the judgment at large, as the evidence sufficiently proved the regularity of the proceedings.

It was objected by the plaintiff’s counsel, that he ought not to have been compelled to make the election stated in the bill of exceptions; but this objection is immaterial, for the case does not depend on the question of the alleged conversion of the property, but on the question of property.

Exceptions overruled