Odiorne vs. Mason, 9 N.H. 24

IticHARDSoN, C. J., delivered the opinion of the court. It is insisted, in this case, that nothing passed by the extent under which the demandant claims, because the execution was not duly returned at the term when it was returnable, or at least it does not appear to have been so returned; and that if any thing did pass, a copy of the record of the extent in the clerk’s office was the only admissible evidence to prove an extent.

However well founded these objections might have been to extents made while the statutes of February 15. 1791, and November 5, 1813, which have been cited by the tern ant's counsel, remained unaltered, the court is of opinion that they are altogether unfounded with respect to extents made since the statute of December 7, 1816.

That statute enacts, “ that from and after the passing of this act, when- ‘ ever any execution shall be served and satisfied in whole ‘or in part by being levied on real estate, it shall not be ne- ‘ cessary to record the same or the return thereon in the 1 clerk’s office from which it issued.” Since this statute there has been no other record of an extent in the clerk’s office than the execution and return thereon on file ; and it has been decided that a copy of these is the proper evidence to prove an extent. 6 N. H. R. 514, Rand vs. Hadlock.

Indeed, it was decided in the last mentioned case, that copies of the execution and return, attested by the clerk, were the only evidence admissible to prove an extent, unless these had been lost after the return. As soon as the execution and return are recorded in the office of the register of deeds, the extent may be considered as complete. But the proper evidence of an extent is copies of the execution and return on file in the clerk’s office. It is immaterial when the execution is returned to the clerk’s office. It is enough if it be returned at any time before copies are wanted to prove the extent.

The court is, therefore, of opinion that these objections to the extent cannot prevail. It is further objected, that the extent is void, because it does not appear that the person by whom an appraiser was chosen for the creditor had authority to make the choice. But this objection is not well founded in fact. The sheriffs return is at least prima facie evidence that the person who made the choice was the agent of the creditor. And since the creditor has adopted the extent and conveyed the land, this is conclusive evidence that the appraiser was chosen by his agent.

These acts made him agent, if he were not so before. The court is, therefore, of opinion that this exception cannot prevail. Another exception taken to the extent is, that the land was set off in satisfaction of an illegal charge, among other things. It was decided, in the case of Burnham vs. Aiken, which has been cited by counsel, that an illegal charge made for the benefit of the sheriff himself did not avoid the extent. There was supposed to be no necessity that could render it fit and proper to hold the extent void on that account, and leave the innocent creditor to seek redress by action against the sheriff.

In this case, the illegal charge was made for the benefit of the creditor. But the land has now passed into the hands of an innocent purchaser, who seems as well entitled to have the debtor left to seek his remedy against the sheriff as the creditor had in the case of Burnham vs. Aiken. Illegal charges have been much too common in extents. And if it should now be decided that this circumstance rendered them void, great uncertainty as to the validity of titles to real estate resting on extents, must inevitably be the consequence, and great mischief ensue to creditors and innocent purchasers.

The court is, therefore, of opinion that illegal fees do not in any case render an extent void, but the debtor is to be left to his remedy against the sheriff, who is responsible for any illegal charges he makes in such cases. It has been insisted, in this case, that nothing passed by the deed of Marston to the demandant, because it was not legally acknowledged, and so not duly recorded. But to this objection there are two answers. In the first place, the taking of the acknowledgment of the deed was a mere ministerial act, that might be as well done by the justice out of his county as within it.

The place where it was taken is wholly immaterial, and the deed is to be considered as duly acknowledged. 3 Pick. R. 404, Haskell vs. Haven; Comyn's Digest, " Justices of the Peace,” B, 1; Cro. Car. 213. In the next place, as between these parties it is altogether immaterial whether the deed were duly recorded or not. The object of the statute which requires deeds in certain cases to be recorded, was to give notice to, and protect creditors and purchasers who might subsequently derive a title from the grantor. With respect to all other persons the recording of the deed is immaterial.

This tenant does not stand in the relation of a creditor or subsequent purchaser, and it is no concern of his whether the deed be duly recorded or not. He has no title whatever derived from Marston that can be affected in any way by that deed. 6 N. H. R. 255. This objection must be overruled, and the result is, that there must be Judgment on the verdict.