Shaw v. O'Brion
| Citation | 69 Me. 501 |
| Court | Supreme Judicial Court of Maine (US) |
| Decision Date | 31 May 1879 |
| Parties | TIMOTHY SHAW, JR., & another v. DANIEL O'BRION. |
ON REPORT.
WRIT OF ENTRY. Plaintiffs and defendant claim title from same owner.
Title of defendant depends upon the question whether a valid attachment, so as to create a lien upon the real estate of one Augustus Moulton, was made February 15, 1875, in a suit Daniel W. O'Brion, administrator, v Augustus Moulton. The plaintiffs claim that the attested copy of the officer's return, filed in the office of the registry of deeds, represents the names of the parties in the suit to be Daniel W. O'Brion v Augusta Moulton.
The defendant claimed that the names of the parties, as thus represented, are Daniel W. O'Brion v. Augustu Moulton, the final " s" being left off in the name Augustus.
The presiding judge at nisi prius, on inspection of the paper produced in court from the registry of deeds, found and ruled that the name therein written by the officer, as defendant, was so written that he could not decide whether it was Augusta or Augustu. Said copy of return had the names Daniel W. O'Brion v. Augusta Moulton, indorsed thereon by the register, when filed, and the record of the attachment, in the book for entering and recording attachments, contained the names of said O'Brion and Augusta Moulton only as parties.
If the law court finds that a valid attachment was thus made, and lien created, on the real estate of Augustus Moulton defendant to have judgment, otherwise judgment to be for plaintiffs; and the parties consent that the original copy of return, filed with the register of deeds, may be by him produced and submitted for inspection by the court at the hearing.
J. M. Goodwin & W. F. Lunt, for the plaintiffs.
L. S. Moore, for the defendant, contended that the description of Moulton in the officer's return was simply a diminished one, but correct and truthful as far as it went, and was no real misdescription, because it was so patent on the face of the papers as to correct itself; and cited Dutton v. Simmons, 65 Me. 583. Com. v. Gleason, 110 Mass. 66. Collins v. Douglass, 67 Mass. 171.
According to the agreed statement submitted by the parties the plaintiffs are entitled to judgment unless there was a valid attachment so as to create a lien upon the real estate of one Augustus Moulton, made February 15, 1875, in the suit of this defendant against said Moulton. If there was a valid attachment of Moulton's estate made, and a lien upon it thus created, defendant is to prevail; and the parties consent that the original " copy of return" filed with the register of deeds by the officer who made the attachment may be produced and inspected at the hearing in this court.
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