Safford v. Weare
| Decision Date | 02 July 1886 |
| Citation | 7 N.E. 730,142 Mass. 231 |
| Parties | SAFFORD and another v. WEARE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo. B. Ives, for demandant.
S.C. Bancroft, for tenant.
This is a writ of entry. The demandant's title is by deed from one Jacobs, executed and delivered in 1878, and recorded in 1880. The tenant's title is under a levy and sale on execution in 1881 in a suit against Jacobs, in which the premises were attached in 1879. The demandant held an unrecorded deed when the premises were attached as the property of the grantor, and had recorded his deed before judgment and execution. The question is whether the sale on the execution is valid against him.
The ad damnum in the writ against Jacobs was $2,000, and the judgment was for $2,117.14 damages, besides cost. As the judgment was in excess of the ad damnum, it was erroneous. Grosvenor v. Danforth, 16 Mass. 74; Hemmenway v. Hickes, 4 Pick. 497; Hichins v. Lyon, 35 Ill. 150. The demandant's right is collaterally affected by the judgment against Jacobs; and as the demandant was not a party or privy to that judgment so that he can reverse it on error, he can avoid it by proof. Vose v. Morton, 4 Cush. 27; Laflin v. Field, 6 Metc. 287; Downs v. Fuller, 2 Metc. 135; Tarbell v. Jewett, 129 Mass. 457.
As this point is quite decisive of the case, it is unnecessary to consider whether, had the judgment been valid, the fact that the attachment (which was limited to $2,000) was less than the amount of the levy, would have the effect upon the levy by sale that it would seem to have upon a levy by extent. See Chickering v. Lovejoy, 13 Mass. 51, 56.
Judgment for demandant.
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