Richardson v. Payne

114 Mass. 429

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1874
• Status: Published

Opinion

Colt, J.

We can see no way to support the demandant’s levy. By the requirements of the statute, Rev. Sts. c. 73, § 3, one of the appraisers must be appointed by the creditor, one by the debtor, and the third by the officer who levies the execution. If the debtor neglects to appoint, the officer shall appoint one for him. No authority is given to the officer to appoint one for the creditor.

In this case the sheriff returns that one of the appraisers was appointed by the debtor, and the other two by himself, the creditor having neglected, after notice, to appoint one. The officer had no right under the statute to do this. When the debtor exercises his right to appoint, the power of the sheriff to appoint more than one does not arise.

It is argued that this unauthorized act was ratified and confirmed by the subsequent act of the creditor acknowledging the receipt of seisin and possession in full satisfaction of the execution. But the difficulty is, the return here shows that the act of appointing two appraisers was an official act of the sheriff as much as when he appoints under the statute for a debtor who neglects to do it. The language of the return shows that he did not assume to act as the agent or attorney of the creditor, but in his official capacity, and under the supposition, no doubt, that he was acting as the statute required. So far from acting as the agent of the creditor, he expressly declares that the creditor had neglected to appoint an appraiser.

The appraisal of the land to be taken is the important step in making the levy. It must be conducted in conformity to the substantial requirements of the statute. And it is no answer to say that in this particular case we cannot see that the rights of the lebtor were injuriously affected.

Judgment for the tenant.