Bessey v. Vose

• Decision Date: 25 February 1882
• Citation: 73 Me. 217
• Parties: PRINCE BESSEY v. BARTHOLEMEW K. VOSE.
• Court: Maine Supreme Court

73 Me. 217

PRINCE BESSEY v. BARTHOLEMEW K. VOSE.

Supreme Judicial Court of Maine.

February 25, 1882

ON REPORT.

Real action. Plea, the general issue.

The facts are stated in the opinion.

Thompson and Dunton for the plaintiff, cited: Parsons v Shorey, 48, N. H. 550; Dearborn v. Twist, 6 N.H. 44; Eastman v. Morrison, 46 N.H. 136; Lyford v. Bryant, 38 N.H. 88; In re Marson, 70 Me. 513; Means v. Osgood, 7 Me. 146; Berry v Spear, 13 Me. 187; Fairfield v. Paine, 23 Me 498; Drew v. Alfred Bank, 55 Me. 450; Farrin v Rowse, 52 Me. 409; R. S., c. 81, § 56; Maine Civ. Off. (4th ed.) 103, 104.

William H. Fogler, for the defendant.

It is claimed that the writ was functus officio at the time of the attachment of October 18, 1876. The defect, if there was one in the writ, could only have been taken advantage of in abatement. Richardson v. Rich, 66 Me. 249; Maine Bank v. Hervey, 21 Me. 38. The objection is not open to this plaintiff.

The mistake of the officer in his return did not affect the attachment. There was enough to charge the subsequent purchaser, this plaintiff, with constructive notice of the attachment.

The true rule in such cases is stated in Whittier v. Varney, 10 N.H. 301, as follows: " And we are of the opinion that these considerations indicate the true rule on this subject. The subsequent purchaser or creditor being chargeable with constructive notice of what is contained in the record, if he has sufficient to show him that all the requisitions of the statute have probably been complied with, and he will, notwithstanding, attempt to procure a title, under the debtor, he should stand chargeable with notice of all the facts, the existence of which is indicated and rendered probable by what is stated in the record, and the existence of which can satisfactorily be shown to the court. And in such cases amendments should be allowed notwithstanding the intervening interests of such purchaser or creditor. He must be held to have purchased or levied, taking the chance whether the officer could in fact show that he had fully performed his duty, and subject to a right in the officer to amend by leave of court, upon satisfactory evidence, showing that amendment may be truly made.

The same rule obtains in this state. Buck v. Hardy, 6 Greenl. 162; Fairfield v. Paine, 23 Me. 498; Knight v. Taylor, 67 Me. 591.

In Massachusetts the law has been so held by repeated decisions of the court of that state. Haven v. Snow, 14 Pick. 28; Johnson v. Day, 17 Pick. 106; Hovey v. Wait, Id. 196.

LIBBEY J.

The officer's return upon the writ is the only evidence of a valid attachment of real estate. Carlton v. Ryerson, 59 Me. 438. The return required to be made to the registry of deeds and its record are notice of the attachment to the public. By the officer's return on the writ, (Vose v. Banton, ) and his return to the registry of deeds, it does not appear that any lien was created by the attempted attachment, because it appears that no attested copy of the officer's return of the attachment upon the writ was deposited in the registry of deeds.

But the defendant asked leave in the court below for the officer to amend his return on the writ by making it conform to his return to the registry of deeds, which it is claimed is in accordance with the fact, and if the court is of opinion that the amendment is allowable it is to be regarded as made, and the action is to stand for trial.

We think the amendment should not be allowed for two reasons: 1. Any person having occasion to examine Banton's title, finding the officer's return to the registry on record, was referred directly to the writ and the officer's return of the attachment theron, to enable him to determine what claim was in suit, to secure which the attachment was made, and whether the officer's return showed a valid attachment. The return to the registry purported to be a copy of a return of an attachment on the eighteenth day of October, 1876. If the plaintiff examined the writ and officer's return, as he had a right to do, he found no such attachment upon it, but one purporting by the return to have been made on the fifth of October, 1876, " one hour P. M."

We think the rule well established that the officer's return of an attachment of real estate, or of a levy upon it, cannot be amended to affect the title of an intervening purchaser, for full value, unless there is sufficient appearing by the return to give third parties notice that all the requirements of law have probably been complied with. Berry v. Spear, 13 Me. 187; Fairfield v. Paine, 23 Me. 498; Milliken v. Bailey, 61 Me. 316.

Cases may occur where some fact which the technical rule of law requires should affirmatively appear, may not be directly stated in the return, and still enough may appear to give third parties reasonable notice that the law in that respect was complied with. Knight v. Taylor, 67 Me. 591. But this is not a case of a failure of the officer to state an essential fact in his return; it is a case where the fact is...