Consol. Rendering Co. v. Martin

• Court: Maine Supreme Court
• Writing for the Court: BARNES, J.
• Citation: Consol. Rendering Co. v. Martin, 128 Me. 96, 145 A. 896 (Me. 1929)
• Decision Date: 10 April 1929
• Parties: CONSOLIDATED RENDERING CO. v. MARTIN et al.

145 A. 896

CONSOLIDATED RENDERING CO.

v. MARTIN et al.

Supreme Judicial Court of Maine.

April 10, 1929.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Writ of entry by the Consolidated Rendering Company against Raphael Martin and others. Verdict for plaintiff. On defendants' exceptions and general motion for new trial. Motion sustained, and new trial granted.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, BARNES, and PATTANGALL, JJ.

N. F. Stevens, of Van Buren, and Herbert T. Powers, of Ft. Fairfield, for plaintiff.

W. R. Roix, of Presque Isle, and A. S. Crawford, Jr., of Houlton, for defendants.

BARNES, J. This case is on a writ of entry brought to gain possession of a farm located in Madawaska in the county of Aroostook.

Both plaintiff and defendants claim title under Raphael Martin, named as one of the defendants, who, it is agreed, was the owner of the premises on May 21, 1924. On that date he was indebted to the plaintiff in an amount exceeding $6,000, and he then gave deeds of the farm to his sons, Paul and Levite, one-half to each in severalty, and received from them a mortgage conditioned for the support of himself and his wife, Glorieuse, for their lifetime, and for the support of an invalid son, Felix, "until he shall have recovered." Felix is dead. The father died after this suit was brought and before trial. At the trial term, discontinuance was allowed as to the father, Raphael.

Glorieuse, the wife of Raphael, joined in the execution of the deed, for the purpose of relinquishing to the grantees her right and title by descent.

No consideration for the deeds was paid by either Paul or Levite at the time of the conveyances.

On July 16, 1924, while Raphael was living with his son, Paul, in Madawaska, on the premises conveyed by him to this son, the plaintiff made an attachment of all the real estate and all the right, title, and interest in any and all real estate in said county of Aroostook owned by Raphael Martin, and at the same time specially attached the premises involved in this suit, alleging the record title to the premises to be in Levite Martin and Paul Martin.

After obtaining judgment, the land was seized and advertised for sale by a deputy sheriff of the county, and a sale of all the right, title, and interest of Raphael Martin to the plaintiff was made on May 18, 1925.

The premises were not redeemed, and this action was brought on July 19, 1926.

The case was tried at the September term, 1927.

Defendants pleaded the general issue. Verdict was for the plaintiff, and the case is before the court on exceptions, and the general motion for a new trial by the defendants.

The first exception is to the admission of the sheriff's deeds, as evidence, because no recital appears in either of the deeds, nor in the sheriff's return of sale on the execution, that the judgment debtor was known to be an inhabitant of this state. We are not aware of any statute requiring a sheriff's deed to contain recitals as to notice to the execution debtor, and in like situation it has been held that such a deed is not inadmissible as evidence because it contains no recital of the sheriff's advertisement of sale, the statute not requiring it. Den ex dem. Newcomb v. Downam, 13 N. J. Law, 135.

It has been held, at least in one case, that a sheriff's deed, though silent as to service of notice, makes out a prima facie case that notice was given. Burnett v. Austin, 10 Lea (Tenn.) 564.

In a recent case, Cutting v. Harrington, 104 Me. 96, 71 A. 374, 129 Am. St. Rep. 373, when the statute provided that the notice to the debtor might be "forwarded to him * * * by mail, postage paid," and the officer recited he "sent to the said [debtor] a written notice by mail," in upholding validity of the sale, this court said: "We find no previous decision of this court in cases of levy by sale compelling us to construe the officer's recitals in this case so strictly and technically as the plaintiffs would have us."

Cases cited in defendants' brief do not, by any fair reading, render the deeds defective.

Pratt v. Skolfield, 45 Me. 386, where the officer's deed was held defective for want of sufficient recitals, the defects not being stated, cannot guide us here. Stinson v. Ross, 51 Me. 556, 81 Am. Dec. 591. Lumbert v. Hill, 41 Me. 475, was a bill to correct an error in description of real estate conveyed by sheriff's deed after levy, and was refused because it called for reform of levy and deeds.

In Stinson v. Ross, supra, there was a good and sufficient return on the execution, and objection was made that the sheriff's deed did not show compliance with statutory requirements in regard to notice. Here again the defects are not specified, but the court goes on to say: "It is not necessary that it should. The officer's return on the execution shows that the proper notices were given, and that is sufficient. Welsh v. Joy, 13 Pick. [Mass.] 477."

"When the debtor's land is taken on execution, and transferred to the creditor by levy, or sold at auction, the general rule is that the officer's return shall state in substance that every act was done, required by statute to constitute a valid levy or sale. It is not necessary, however, that the officer should state in his return in direct terms the performance of such acts. No particular phraseology is required. It is sufficient if it appears by the language used, or can be reasonably and fairly inferred from it that the act was done." Millett v. Blake, 81 Me. 531, 18 A. 293, 10 Am. St. Rep. 275.

An allegation of fact by an officer "is sustained by the ordinary presumption of correctness which attaches to the proceedings of officers. * * * The law seeks to uphold official acts. In all reasonable cases, it presumes that officers have acted legally. It affords ample aid and encouragement to an official who is honestly endeavoring to execute a public trust. We think there are excellent reasons for the doctrine." Snow v. Weeks, 75 Me. 105.

Exception 1 appears to have been taken for the assumed reason that there is not sufficient legal evidence that the officer gave to the judgment debtor the notice of sale provided by the statute.

It is not denied that the alleged owner received the notice of sale, "left at the last and usual place of abode of the said Raphael Martin." There was also due public notice. The argument of counsel for defendants is that in his return of sale, and in the recitals in his deeds, the officer should have specifically recited that defendant Raphael Martin was at the time of giving notice of the sales an inhabitant of the state.

This we think is a nicety of construction of the statute authorizing conveyance of title seized on execution not required. The notice is the thing. The question is whether or not the alleged owner was given notice of the impending sale.

The privilege accorded the officer of giving the personal notice by mailing, postage prepaid, to an owner not inhabitant of the state, is a proviso attached, to make effective service in the exceptional case, when the alleged owner is not an inhabitant.

The giving of notice may be shown prima facie by recitals in the sheriff's deeds. Cutting v. Harrington, supra; 36 A. L. R. 998.

In the return of sale, made by the officer on May 18, 1925, under authority naming Raphael Martin, of Frenchville, in the county of Aroostook as the judgment debtor, an exhibit in the case, the officer indorsed on the body of the commission giving his authority to proceed, that he took "real estate and all the right, title and interest which the within named Raphael Martin had in and to the same," and that he seasonably "left at the last and usual place of abode of the said Raphael Martin a written notice," of coming sale by public auction. The officer's deeds severally recite that on a judgment recovered "against Raphael Martin of Frenchville in the county of Aroostook and state of Maine," he seized and sold the real estate.

The statute, chapter 81, § 33, prescribing procedure prerequisite to sale on execution provides: "The officer in such case shall give written notice of the time and place of sale, to the debtor in person, or by leaving the same at his last and usual place of abode, if known to be an inhabitant of the state, and cause it to be posted in a public place in the town where the land lies, and in two adjoining towns, if so many adjoin." The objection is that the notice was not properly served, because the officer who made the alleged service did not include in his return, and did not recite in his official deeds, that Raphael Martin was known to be an inhabitant of Maine.

We hold that the omission of a statement that the debtor was known to be an inhabitant of the state does not vitiate the notice, especially since we find no denial that the debtor received the notice. Briggs v. Hodgdon, 78 Me. 514, 7 A. 387. It follows that, despite this objection, the deeds were admissible as evidence.

The second exception is to the admission of the sheriff's deeds in evidence on the ground, as alleged, that when proceeding under statute (chapter 81, § 14), in order to give the creditor the right to bring a writ of entry, the sheriff must proceed, under the execution, by levy and setting off, or appraisement, and not by levy and sale.

At the time of the offer of the deeds in evidence, defendant objected to their admissibility, because given in judicial sale upon levy. We think the ruling right.

It has always been in accordance with the spirit of the American law to place within the power of the creditor the means of reaching both the real and personal estate of the debtor.

The appraising of real estate and rights to redeem is said to have had its origin wholly in the colony of Massachusetts Bay.

And the act of 1647 is cited as the original statute upon the subject. Washburn on Real Property (5th Ed.) 82.

In our commonwealth of Massachusetts the taking of lands on execution was...