Lewis W. Kellenberger & others vs. Daniel Sturtevant, 11 Cush. 160

Dewey, J. It is contended on the part of the tenant that the title of the demandants is defective, by reason of failure to comply with the statute provisions in reference to a levy on the real estate of the judgment debtor. 1. Because the appraisers were not duly sworn. As to this point, the levy having been made prior to the Revised Statutes, must be in conformity with the then existing laws. They required that it should appear from the return, and certificates attached to the same, that the oath had been administered in the form required by the statute. Chamberlain v. Doty, 18 Pick. 495.

The form of the oath administered to Kingsley, one of the appraisers, as certified by the justice, does not conform to the statute, and unless aided by the certificate and return of the officer levying the execution, this would vitiate the levy. That this may be done, and that it is sufficient if the return of the officer, taken in connection with the certificate of the justice, shows the necessary forms to have been complied with, the case of Cowls v. Hastings, 9 Met. 476, is an authority in point.

In that case a fatal defect in the certificate of the justice as to the oath was held to be obviated by the return of the officer, although the officer’s return itself had a reference to the certificate of the justice. The return of the officer was held good for all that it contained, and reference was also allowed to be had to the certificate of the justice for other material facts stated in that, and not contained in the return of the officer.

In the case before us, the ofñcer states in his return that the appraisers were duly sworn “ faithfully and impartially,” &c., supplying the defect in the certificate of the justice. It appears by the return of the officer, that the form of oath was correct, and it appears from the certificate of the justice, that the oath to the appraisers was administered by a justice of the peace.

So far as the two are in conflict in their recitals, the return of the officer is to control, but reference may be had to the certificate of the justice for proof of other facts not contained in the officer’s return, as was held in case of Cowls v. Hastings, supra, and thus the levy be shown to have been properly made. Shove v. Dow, 13 Mass. 535, is to the point that the certificate of' the officer is to control in the recital of what was done in making the levy of an execution. 2.

The second objection taken to the validity of the levy is, that it does not appear that the debtor, Daniel Sturtevant, whose land was taken to satisfy the execution against him and one James Sturtevant, chose an appraiser, or having proper notice, refused and neglected to do so. The ground for sustaining this objection arises wholly from the circumstance that there were two judgment debtors, Daniel Sturtevant and James Sturtevant, and the want of certainty as to which the return refers, when it recites that “ the said Obadiah Ingraham was chosen by the debtor within named,” as one of the appraisers.

Had there been but one debtor, the certificate of the officer on this point would be quite sufficient, it is conceded. Looking at the whole return of the officer of his doings in making this levy, we think it sufficiently appears that Daniel Sturtevant, whose land was taken, was the person who chose the appraiser, Ingraham. The previous recital in the officer’s return is, “the creditor thinking it proper to levy the execution on the real estate of the within named Daniel Sturtevant,” and all the subsequent acts may properly be applied to him, his name alone being introduced, and not that of James Sturtevant.

The oath as certified by the officer was, to appraise the land of Daniel Sturtevant, and to this succeeds his further return as to the choice of the appraisers, that “ the said Obadiah Ingraham was chosen by the debtor,” which, from its connection with the whole return, must be taken to mean, being chosen by Daniel Sturtevant. Giving this construction to the return, there is no ground for the supposed objection from this source. Judgment for the demandants.

There was also an action of trespass quare clausum between the same parties, involving same questions of law, in which judgment was entered for the plaintiffs.