Rand v. Cutler

• Decision Date: 14 January 1892
• Citation: 155 Mass. 451,29 N.E. 1085
• Parties: RAND v. CUTLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 451

29 N.E. 1085

RAND v. CUTLER et al.

Supreme Judicial Court of Massachusetts, Berkshire.

January 14, 1892

COUNSEL

ME Couch and A. Potter, for plaintiff.

Wells McClench & Barnes, for defendants.

OPINION

ALLEN J.

This is a bill in equity to redeem land from a mortgage. The only ground upon which the defendants contest the plaintiff's right to redeem is that his title was divested by a sale on execution against him. The plaintiff contends that the levy and sale were invalid, and assigns as one of his reasons that the sheriff's return does not show the dates of either the personal or the published notice of the sale. By PubSt c. 172, § 29, when land is to be sold on execution, "the officer shall give notice in writing of the time and place of sale to the debtor, if found within his precinct, and shall also cause notifications thereof to be posted up in some public place in the city or town where the land lies, and also in two adjoining cities or towns, if there are so many in the county; all which notices shall be given thirty days, at least, before the sale." There is a further provision for an advertisement in a newspaper. By section 45 of the same chapter, the levy, "in case of a sale, shall be considered as made at the time of the first notice of such sale, whether given to the debtor, or by posting up a notification thereof in a city or town, or by publishing the same, as before prescribed." Since the levy takes effect as of the time of the first notice, it becomes material that the officer's return should show the date of such notice. The levy itself must be made before the return-day of the execution, but the subsequent proceedings may be afterwards. Pub.St. c. 172, § 45; Slater v. Lamb, 150 Mass. 289, 22 N.E. 892. The execution upon which the officer assumed to act was dated July 24, 1878. It was returnable in 60 days from date. Pub.St. c. 171, § 22. It would therefore run out on September 22d. Since the levy is to be considered as made at the time of the first notice, it was necessary to give this notice as early as September 22d. All that the return shows is that it was given 30 days before the time appointed for said sale. That time was November 9th. Therefore all that the return shows is that the notice was given as early as October 10th, and, so far as the return shows, it might have been given on any day between September 22d and October 10th, and, if so given, it would be after the return-day of the execution. An officer's return of the levy of an execution upon real estate must show that all the requisites of the statutes have been complied with, in order that a good title may appear of record; and the facts cannot be supplied by extrinsic evidence. The importance of this requirement has often been dwelt upon. Wellington v. Gale, 13 Mass. 483, 488; Williams v. Amory, 14 Mass. 20, 29; Litchfield v. Cudworth, 15 Pick. 23, 28; Wolcott v. Ely, 2 Allen, 338; Parker v. Abbott, 130 Mass. 25, 28; Welsh v. Macomber, Id. 28, in note. The return was defective in respect to the time of giving the first notice, and no motion was made to amend it. It therefore follows that it does not appear that the sale on the execution was valid, or that the plaintiff's title was divested.

The plaintiff also contends that, upon redemption of his mortgage, he is entitled to be subrogated to the defendants' rights under another mortgage given by Caroline F. Rand to secure the same debt. It appears that Lucius C. Rand, who was the husband of Caroline and the son of the plaintiff, was a member of a firm which owed $900 to the North Adams Savings Bank. In part payment of this debt, a new note for $800 was given to the savings bank, signed by Lucius C. Rand and Clark Rand. In fact, Clark Rand (the plaintiff) was a surety, though this did not appear on the face of the note. To secure this note, the plaintiff gave to the savings bank a mortgage upon his lot of land; and on the same day Caroline also gave to the savings bank a mortgage upon her lot, though she did not sign the note. So far as the facts were known to the savings bank, each mortgagor was furnishing security for the debt of Lucius C. Rand, and each would stand in...