IV. RELIEF AGAINST ERRONEOUS EXECUTION. 59. The provision of the statute requiring an officer to make demand of payment of the 52. Mode. An execution, irregularly issued, debtor before a levy of the execution, is directory may be set aside on motion, or petition, or by merely, and a levy is not invalidated by an audita querela. Porter v. Vaughn, 24 Vt. 211. omission to make such demand. Eastman v. Fletcher v. Mott, 1 Aik. 339. Allen v. Car-Curtis, 4 Vt. 616. Dow v. Smith, 6 Vt. 519. penter, 7 Vt. 397. Mattocks v. Judson, 9 Vt. Warner v. Stockwell, 9 Vt. 9. Collins v. Per343. Vandakin v. Soper, 2 Aik. 248. Williams, kins, 31 Vt. 624. J., in Hurlbut v. Mayo, 1 D. Chip. 391. Stan- 60. For a violation of his duty in this parley v. McClure, 17 Vt. 253. Hapgood v. God- ticular, the officer is liable,-as, where he comdard, 26 Vt. 401. Catlin v. Merchants Bank, mits the debtor in disregard of his right, with36 Vt. 572. out apparent necessity, and from motives of 53. Whether the refusal of the county court oppression, or malice, -and not otherwise. Ib. to set aside an execution, upon motion, for 61. Levy must be within life. An exehaving been issued more than a year and a day cution cannot be levied after the return day after the judgment, is a proper subject of ex- thereof; but if levied before, the sale and ception to the supreme court, doubted by return may be made afterwards. The return Poland, C. J., in Catlin v. Merchants Bank, must show the fact. Barnard v. Stevens, 2 but allowed; as, also, in Allen v. Carpenter, Aik. 429. and Hapgood v. Goddard. 62. Judgment by default in an action on 54. Waiver of error. If an execution be jail bond was set aside by writ of error, where issued more than a year and a day after the the declaration showed that the debtor was judgment, the error may be waived by any committed after the return day of the execupositive act of the debtor indicating an acquies- tion. Roberts v. Wells, Brayt. 37. cence, as by being present at the levying of the 63. Return. Where an execution was execution and participating in choosing apprais- levied upon the body of the debtor on the last ers, knowing, or having the means of knowing, day of its life, but was not returned into the of the error. Catlin v. Merchants Bank. Wil-office from which it issued until afterwards;lard v. Whipple, 40 Vt. 219. Held, that the service was good, and that the 55. Burden of proof. In an audita querela officer was not liable to the creditor, without to set aside an execution against the body, in a proof of actual damage from neglect to make case of contract ;-Held, that it was for the seasonable return. Fletcher v. Bradley, 12 Vt. defendant, in justification, to show affirmatively 22. that the proper affidavit was filed. Sawyer v. Vilas, 19 Vt. 43. V. PROCEEDINGS UNDER EXECUTION. 1. In general. 64. The commitment of a debtor on execution is legal, and operates effectually for the creditor's benefit, although the execution is not returned. Watkinson v. Bennington, 12 Vt. 404. 65. An informal return of non est upon an execution was adjudged sufficient, being so in 56. Indorsement of date of receipt. An substance. Orvis v. Isle La Mott, 12 Vt. 195. officer is not liable for an omission to indorse 66. Time of delivery. No action lies for upon an execution the date when he receives the escape of a debtor committed to jail on it, although this is made his legal duty by G. mesne process, unless the execution be delivered S. c. 47, s. 1, without proof of actual damage to an officer for service within fifteen days from from such neglect. In an action for such the time of rendering final judgment, although neglect, the necessity of calling a witness to the debtor escaped from jail before judgment, prove such date, is not such damage. Abbott and has gone to parts unknown. v. Edgerton, 30 Vt. 208. Martin, 16 Vt. 237. Weeks v. 2. Levy upon personal property. 57. Demand of payment. In case of an execution against a town, a levy without previous demand of the treasurer would not subject the officer to an action of trespass, but 67. Taking in execution. An officer's reonly to an action on the case to recover any turn of a levy of execution upon hay, stated that damages occasioned by his omission to make he lodged a true and attested copy of the original such demand. Walter v. Denison, 24 Vt. 551. execution in the town clerk's office, &c., but 58. A demand of payment of an execution omitted any statement of his return of levy against a town made of the person who is treas- thereon being so left. Held, that although this urer, though not made upon him as treasurer, would not create a valid lien on the property as a but as an officer of the town (selectman), and constructive notice of the levy, it was a sufficient his refusal to pay, were held a sufficient demand taking of the property in execution to support and refusal to warrant a levy. Ib. the officer's subsequent proceedings of adver tisement and sale. Jewett v. Guyer, 38 Vt. the sale was had at the time and place appointed 209. in the advertisement. Beattie v. Robin, 2 Vt. 181. 68. Place of advertising and sale. The term "public place," as used in the statute des- 75. So, that the place of posting was the ignating the place for the posting of notifications same as the place at which, by the advertiseof sales upon execution (G. S. c. 47, s. 4), and ment, it was to be and was sold. Drake v. for taxes (G. S. c. 84, s. 11), means a place Mooney, 31 Vt. 617. where the advertisement would be likely to 76. So, that the levy was made in the town attract general attention, so that its contents where the property was advertised and sold. might reasonably be expected to become a Jewett v. Guyer, 38 Vt. 209. matter of notoriety in the vicinity. If answering this condition, it might be a private dwell ing, a barn, a shed or other out-building, or even a rock, tree, or fountain. It need not be a place which people are accustomed to resort to, or to stop at, to transact business. Austin v. Soule, 36 Vt. 645. Alger v. Curry, 40 Vt. 437. Alger v. 77. The statement in an officer's return upon an execution was, that he "advertised the property to be sold" at a place named. Held, that this was a sufficient statement that the advertisement was set up at the same place. Collins v. Perkins, 31 Vt. 624. 78. Inequality in sale. Trover will not lie in favor of an execution debtor against the 69. The place named in an officer's return execution creditor, for property bid off by the upon an execution, as the place of advertise- creditor on the execution sale, because of an ment and sale, will be presumed to be a "public irregularity of the officer in the sale. Hale v. place," in the absence of proof to the con- Miller, 15 Vt. 211. trary. Drake v. Mooney, 31 Vt. 617. 79. Execution not returned. It is no Curry. objection to an officer's maintaining trespass 70. In sales upon execution, where the for taking from his possession property taken character and situation of the property and the on execution, that the execution was not interests of the parties require, the officer may returned. Sewell v. Harrington, 11 Vt. 141. in his sound discretion, and in good faith, advertise and sell at several places. A return of advertisement and sale at three different places, was held good on its face. Drake v. Mooney. 3. Levy on real estate. 80. Sale. Lands taken on execution in favor of the Vermont State Bank may be sold 71. Where property was attached in the on the execution, and the execution need not be town where the debtor resided, and was recorded. (Slade's Stat. 214, ss. 13-15.) Vt. removed by the officer into another town, and State Bank v. Clark, Brayt. 236. there kept until execution issued, and was there 81. What may be set off on levy. It is levied upon, but the advertisement and sale were in the town first named ;-Held, that this was a compliance with the meaning and spirit of G. S. c. 47, s. 4. Collins v. Perkins, 31 Vt. 624. no objection to a levy upon land attached, that the debtor had sold and conveyed those premises subsequent to the attachment, and that he had other lands sufficient to satisfy the execution, which might have been levied upon. 72. -must be the same. The advertise- Young v. Judd, Brayt. 151. Nor, that the ment at one place, for sale at another, of prop-appraisers had appraised other land to an erty taken in execution, other than hay, grain, amount larger than the execution, and that the &c., makes the officer a trespasser ab initio and creditor then abandoned that property and liable for its full value, although he may have levied upon the land in question. Ib. applied the proceeds of the sale upon the execution. Evarts v. Burgess, 48 Vt. 205. Hall v. Ray, 40 Vt. 576. 82. The death of a defendant after judgment does not prevent the levy of an execution upon the real estate attached and held upon the 73. Adjournment of sale. Although no original writ. Passumpsic Bank v. Strong, power is expressly given an officer by statute 42 Vt. 295; and see Downer v. Brackett, 21 Vt. to adjourn an advertised sale on execution, such 605–6. power is implied as matter of necessity; and in 83. The sheriff having two executions in the exercise of a sound and reasonable discre- favor of one creditor against one debtor, levied tion he may not only adjourn the time but may them together upon the same parcel of land, as a change the place of sale; provided the place is whole, in satisfaction of both executions. Held such as he might have appointed in the first good. Baldwin v. Foot, 1 Tyl. 14. instance. Jewett v. Guyer, 38 Vt. 209. Wood 84. v. Doane, 20 Vt. 612. Where the legal title to lands is of record in A, but the equitable title and ownership is in 74. Return-Presumption. In favor of B, notice of B's title, received by an attaching an officer's proceedings on execution, the court creditor of A before levy of execution upon the will presume, the contrary not appearing, that land, though after the attachment, will protect the title of B against the levy. Hackett v. 94. The levy upon a portion of an equity of Callender, 32 Vt. 97. redemption less than the whole, must be upon 85. The levy will not hold the equitable an aliquot proportion of the whole; and if title in such case, even though the creditor made upon a part by metes and bounds, it is have no notice of the trust. Hart v. Farm. & absolutely void. Swift v. Dean, 11 Vt. 323. Mech. Bank, 33 Vt. 252. Abell v. Howe, 43 Collins v. Gibson, 5 Vt. 243. Vt. 409. 95. A levy upon mortgaged premises was 86. Interest set off must be designated. objected to, because it purported to be not a A levy upon "all the right, title and interest of levy upon the land but upon the debtor's equity the debtor, in and to" certain lands, without of redemption in the land. Held good. Ib. further designation of the interest levied upon, 96. In levying upon an equity of redempis void. Paine v. Webster, 1 Vt. 101. Arms tion, the creditor is not bound to levy upon v. Burt, 1 Vt. 303. the entire interest of the debtor in the premises, 87. Alteration of return on the attach- although the execution exceeds the appraised ment. A levy of execution is not affected by value of the equity; but he may levy for a a subsequent unauthorized alteration of the portion of his debt upon an undivided part of officer's return upon the attachment. Gilman the debtor's entire interest; and this, although v. Thompson, 11 Vt. 643. another creditor, at the same time, makes a 88. Statute requisites—Conditions. The like levy of his execution, thus making such levy of an execution upon lands is a proceeding creditors tenants in common of the equity. in invitum. Hence, all the statute requisites Kimball v. Smith, 21 Vt. 449. to the passing of the title must be complied 97. A mortgage of a lease-hold estate, alwith. They are in the nature of conditions though by metes and bounds, seems to be only precedent. Bennett, J., in Morton v. Edwin, 19 Vt. 80. 89. Mode of levy-Estate of husband. The mode of levying upon a husband's estate in the land of his wife, after issue born alive, is by metes and bounds, and upon his entire interest to that extent. Mattocks v. Stearns, 9 Vt. 326. an assignment of the rents. And where such mortgage covered also two other parcels of land held in fee, it was held that in a levy of execution upon the equity of redemption, the leasehold estate might be disregarded. Hulett v. Soullard, 26 Vt. 295. 98. The levy of an execution without noticing a mortgage chargeable upon the land, or 90. of tenant in common. The levy by estimating the mortgage at too small a sum, upon part of the interest of a tenant in common is not a defect of which the debtor, or those should be upon an aliquot proportion of his claiming under him, can complain. It is the entire interest. If made upon his entire in- creditor in such case, and not the debtor, who terest in a part of the land, as by metes and is injured. Perrin v. Reed, 35 Vt. 2. Slocum bounds, it is void. Smith v. Benson, 9 Vt. v. Catlin, 22 Vt. 137. See Paine v. Webster, 1 138. Galusha v. Sinclear, 3 Vt. 399; arguendo, Vt. 101, 129 131. 11 Vt. 325. Devereaux, 48 Vt. 550. Fairbanks V. 99. In setting off lands upon execution, the 91. A levy must be upon the whole estate value of the interest set off must be ascertained, which the debtor has in the land. If a less-as, if the lands are incumbered, the value of estate be carved out, leaving a reversion in the the equity of redemption. debtor, such levy is void as against the debtor, and no title passes. Howe v. Blanden, 21 Vt. 315. 92. A levy upon an undivided moiety of a given portion of the land held by the debtor in common with another, instead of upon an undivided portion of the whole, is not absolutely void, but only voidable at the election of the other tenant; it is well enough as to the debtor, and he cannot object to it. Ib. 100. Homestead. If the lands are subject to the homestead right, the homestead must be first set out. A set-off of the land subject to the homestead right is irregular. Ib. 101. Equitable title. Land was conveyed by absolute deed, but with a secret defeasance. A judgment creditor of the grantor, proposing to levy his execution upon the land, applied to 93. Equity of redemption. A levy upon the parties for information as to the character of a fractional or undivided portion of the debtor's the transaction, and, if in trust, to state the land, instead of in severalty by metes and amount of the claims upon it, and they refused bounds, is wholly ineffectual to transfer the to inform him. He then levied his execution title, unless the statute reasons therefor, as ad- upon enough of the land, in fee, to satisfy it, judicated by the appraisers, are stated in the and brought his bill against both parties to have officer's return-and this, although the land was the conveyance set aside as fraudulent. It apin fact subject to a mortgage. (G. S. c. 47, ss. pearing on hearing, that the deed was in effect 33-34.) Morgan v. Armington, 33 Vt. 13. a security, and that the land not levied upon Sleeper v. Newbury Seminary, 19 Vt. 451. was amply sufficient to satisfy the just claims Edwards v. Allen, 27 Vt. 381. of the grantee, the court ordered a decree that The trans fer of title to land by levy of execution is a matter stricti juris, and all the material facts necessary to show that the law has been complied the defendants, at their election, pay the 110. Officer's return-Form. orator's execution, he relinquishing all his title under the levy, or else that they quit-claim to him all their right in the part levied upon, and, in either case, that they pay all costs. Smith with, should appear by the officer's return, and v. Onion, 19 Vt. 427. not rest in parol. Sleeper v. Newbury Seminary, 102. Appointment of appraisers-No-19 Vt. 451. Morgan v. Armington, 33 Vt. 13. tice. It is the duty of an officer making a levy upon lands, to notify the debtor to choose an appraiser. If he do not, the levy may be set aside. Briggs v. Green, 33 Vt. 565. 111. A levy made according to the form given by Chief Justice Chipman (N. C. 264), has uniformly been supported, though it wants that particularity which would be required in a 103. No notice need be given to the debtor new case having no such foundation in forms to appoint appraisers when he is out of the or in practice. Cleaveland v. Allen, 4 Vt. 176. State, nor to his attorney in the suit, unless he Dodge v. Prince, 4 Vt. 191. Seymour v. Beach, be a known agent or attorney legally authorized 4 Vt. 493. Chase v. Bowen, 7 Vt. 431. Aldis to act in the premises. Galusha v. Sinclear, 3 v. Burdick, 8 Vt. 21. Day v. Roberts, 8 Vt. Vt. 394. Gilman v. Thompson, 11 Vt. 643. 413. 104. An attorney for the debtor, although 112. "Good and lawful freeholders of the his name is indorsed as such upon an exe-vicinity," as used in Judge Chipman's form of cution, is not, without special appointment, an the levy of an execution, imports disinterested, agent for receiving notice for the appointment and also that the appraisers were residents in of appraisers, although the debtor may be with- the town where the land was situate, as used in out the State. Dodge v. Prince, 4 Vt. 191. the statute,-and in this respect such return is Galusha v. Sinclear. sufficient. Day v. Roberts. Seymour v. Beach. Chase v. Bowen. 105. Where the execution creditor chose one of the appraisers, and a justice, on his application, appointed the other two, and the debtor had no notice to appoint;-Held, that the levy was void. Stanton v. Bannister, 2 Vt. 464,-overruling Young v. Judd, Brayt. 151. 113. But not so, where the word "judicious" was used, instead of disinterested. White v. Fox, cited in 8 Vt. 418. 114. Where appraisers are appointed by a justice, the return must certify that he was one 106. "Disinterested." Appraisers on the who by law might judge between the parties levy of an execution should stand in no such in civil causes, or the levy will be invalid ;relation to either party, as would disqualify unless the return has adopted the more general them for the execution of judicial power between and approved form of Judge Chipman. Dodge the parties. The word disinterested, as used in v. Prince, 4 Vt. 191. 8 Vt. 417. the statute expression, "judicious and disinterested freeholders," means something more than being devoid of pecuniary interest. Blodget v. Brinsmaid, 9 Vt. 27, 30. 115. Sundry objections taken to a levy of execution considered, and held not material, viz. irregularity of proceedings before judgment; omission to state demand of payment; 107. Unfriendly feelings of appraisers to- mere statement that the appraisers were "muwards an execution debtor,—as, that they were tually appointed" by the parties; that they his "personal enemies and were in litigation were "judicious disintered” (instead of disinterwith him,"-constitute no legal disqualification, ested) "freeholders"; that "they appraised like interest or relationship, to their action as the same," without saying in what way they such in the setting off of the debtor's lands ascertained the value, as by view of the premiupon execution. The justice in making the ses, &c.; that no certificate of the appraisers appointment acts judicially, and is sole judge accompanied the return; that the form of of their suitableness and fitness. oath administered was not given, except in the Green, 33 Vt. 565. statement "I have sworn them as the law directs"; that the bill of fees was too large; that the return was signed as deputy sheriff; that it was not sealed. Eastman v. Curtis, 4 Vt. 616. Briggs v. 108. "Agreed upon." In the return of a levy of execution upon land, a statement that the appraisers were "mutually appointed," or "agreed upon," by the parties, complies with the statute. Eastman v. Curtis, 4 Vt. 616. Aldis V. Burdick, 8 Vt. 21. 116. Description of premises. The levy is sufficient, as to the description, by reference 109. Appraisal. A levy and set-off which to former deeds upon record, such as to fix the is made on the basis of an appraisal by two of identity of the property with certainty. Maeck the appraisers, the third not concurring but v. Sinclear, 10 Vt. 103. Gilman v. Thompson, appraising the land at a less sum, will not be 11 Vt. 643. Galusha v. Sinclear, vacated by audita querela at the instance of the 3 Vt. 394. Hyde v. Barney, 17 Vt. 280. debtor. He has not been injured, Hopkins v. 117. Alevy which is good against the debtor, Haywood, 36 Vt. 318, is good against everybody-as, subsequent levy 19 Vt. 338. ing creditors-the question being, whether the execution, unless the execution and return have levy sufficiently described the land; and, as to been recorded at length in the town clerk's this, the same rule is to be applied to a levy as office, and also in the office of the court from is applicable to a deed. Barnard v. Russell, 19 which the execution issued, prior to the comVt. 334. mencement of the action. Both are essential to the passing of title by the levy. Morton v. Edwin, 19 Vt. 77. 118. A levy and set-off of a specified number of acres "off of the east end" of a lot, the lot being in rectangular form, was held to be a sufficient description by "metes and bounds," and should be intended to be cut off by a line parallel with the lot line. Clark v. Fuller, 9 Vt. 356. 10 Vt. 213. 27 Vt. 256. Ib., 743. 126. It is not necessary to the validity of a levy, that the officer making it should state in his return, that the levy was actually recorded in the town clerk's office, since the recording is not his act; but where his return is, that he left the execntion and levy in the proper town clerk's office "together with seventy-five cents for recording the same, to be recorded in the records of lands in said town," and there is a certificate of the town clerk of the same date indorsed, that he recorded the same, this, in connection with the return, is prima facie evi120. In a levy, the description began at a dence that the execution and return were propnotch in the fence "on the east side of the erly and seasonably recorded, and is a sufficient road," &c., and thence around, by specific compliance with the statute in this respect. courses and distances, "to the road"; and Willard v. Whipple, 40 Vt. 219. 119. A defective description of some lots in a levy, though they are all appraised together at a gross sum, does not vitiate the levy as to such lots as are well described, unless in some proceeding to set aside the levy. Cleaveland v. Allen, 4 Vt. 176. Paine v. Webster, 1 Vt. 101, 129. thence "on the line of the road," &c., and thence by specific course and distance "to the place of beginning." Held, that no part of the highway was included. Cole v. Haynes, 22 Vt. 588. 127. Record as notice. A levy takes effect, as notice, from the time when the execution and return are recorded in the town clerk's office, and if returned to the court from which the execution issued and there recorded within the life of the execution, such levy will prevail over an attachment made after such record in the town clerk's office, though before 121. Record in town clerk's office, return to court and record there. In order to the validity of a levy of execution upon lands so as to pass the title, it is necessary that the execution, with the officer's return thereon, should the return to and record in such court. Willard be recorded in the proper town clerk's office, v. Lull, 20 Vt. 373. and should be returned into the office of the 128. as connecting levy with attachcourt from which it issued, all within the life ment. Whether, in order to preserve a prior of the execution. Russell v. Brooks, 27 Vt. 640. ity of lien created by the attachment of lands, Hubbard v. Dewey, 2 Aik. 312. Hall v. Hall, the execution, with the officer's return of the 5 Vt. 304. Downer v. Hazen, 10 Vt. 418. Mor-levy and set-off, must not only be recorded in ton v. Edwin, 19 Vt. 77. Perrin v. Reed, 33 the proper town clerk's office, but be also Vt. 62. Little v. Sleeper, 37 Vt. 105. Willard returned into the office of the court from which v. Whipple, 40 Vt. 219. it issued within the five months after the judg 122. It is not necessary that it should be ment- -quære. Ib. Willard v. Whipple, 40 Vt. recorded in the office from which it issued, 219–228. within its life. Perrin v. Reed. 123. But it must be recorded in such office before the suit is brought by which the title under it is to be tested. Morton v. Edwin, 19 Vt. 77. 129. The levy of an execution upon lands originally attached, and a set-off, made within five months from the judgment, but not recorded in the town clerk's office until after the five months have expired, is not seasonable to con 124. An execution and return of levy upon nect it with the attachment lien, so as to prevail lands was duly returned to the county clerk's against an intervening conveyance or incumoffice and filed by him for record, and he com- brance. Ellison v. Wilson, 36 Vt. 60. menced recording it, but, before completing the 130. Record from copy. A duly certified record, went out of office. The execution was copy of an execution and levy from the town inadvertently and by mistake taken from the clerk's records, was held sufficient prima facie office and remained lost for three years, when, on being found, it and the return of levy were recorded by the then county clerk. Held, that, as between the levying creditor and the debtor, this was sufficient to pass the title of the debtor under the levy. Perrin v. Reed, 33 Vt. 62. evidence of the recording of the original, although the officer in his return had certified that he had delivered to such clerk a true and attested copy of such execution, &c. Hubbard v. Dewey, 2 Aik. 312. 131. The record in the town clerk's office 125. The creditor cannot sustain ejectment of the levy of an execution, made from a copy against the debtor, founded upon the levy of of the execution and officer's return, is sufficient |