Asa Aldis, Ex'r of Sanford Godcomb, vs. Justus Burdick, 8 Vt. 21

The opinion of the court was pronounced by Reditield, J. The counsel in this case seem to have expected that the questions raised upon the merits of the case should be considered and decided by the court in order to dispose of the case, notwithstanding the court might be inclined against the decision of the county court, upon the question of not requiring the plaintiff to prove his appointment as executor under the general issue. The levy is first objected to as being void. It is said the officer’s return does not show that the appraisers wore legally appointed.

The words of the return are, that the appraisers were “ mutually chosen and agreed on by the parties.” The statute requires that when the appraisers are appointed through the agency of the parties, each party should select one appraiser and that they shall agree upon the third. Here they agree upon the three, who possess all the requisite qualifications. This is not only a substantial but a literal compliance with the statute. For if the party agree upon an appraiser he chooses him, so that each party, instead of choosing one appraiser, chooses two, and they agree upon the third.

This was expressly decided in Eastman vs. Curtis, 4 Vt. 616. But it is said the United States, being a party to this levy, the return of the officer cannot be true, since no one appears to have been authorized to act on their behalf, and having no personal existence, they could not act of themselves directly and immediately. There can be no doubt congress might have appointed an agent for this purpose. The secretary of the treasury would have been authorized to act in this matter.

And even if the district attorney be considered in the light of the attorney of record in actions between personal parties, and not on that account agents of the party for the purpose of the levy, still it being possible that the United States should have acted in this way, we consider the legal intendment that they did so act.’ And it is not now in the power of the judgment debtor or his grantee, after having acquiesced in the authority of whomsoever claimed to act as agent, and proceeded with the levy without objection, to avoid the levy by showing, out of the record, a want, of authority in the agent, the United States having all along acquiesced in the sufficiency of the agent’s authority.

It is further objected that the appraisers were not properly sworn. The return is in these words : “ sworn in due form of law.” The expression found in judge Chipman’s forms, in this respect, is very similar, “ sworn according to law.” These forms have, by repeated judicial determinations, been declared sufficient, and the departure here is too immaterial to warrant any distinction. The phrases, “ in due form of law,” and “ according to law,-” must surely be equivalent. And the legal intendment of both is, that the proper oath was administered by the proper officer. Such have been the-decisions in this state.

This disposes of all the objections urged-, against the levy.— Cleveland vs. Allen, 4 Vt. 176. No objection is taken to the form of the deed given by the mar-shall to plantiff’s testator. It is admitted to be in compliance with the requirements of the statute of May 7, 1800, then in force. But it is objected that the marshall’s deed was void by reason of an adverse possession; the tenant of Tuttle having all along continued to occupy the premises.

The possession of Tuttle or his tenant cannot in any sense be considered adverse to the levy, butafter the six months has expired must be held to be only in subordination to the levy. So that at the time of the levy, Gill was in possession as the tenant of the United States. The fact of his not having then attorned makes no difference. Nor does his subsequent attornment in any way affect the relation, which by operation of law had already been created between Gill and the United States.

After the expiration of the six months given forredemption, the law casts the seizin upon the creditor without any act on his part and gives him the possession of the debtor or his tenant with an immediate right of entry. And the debtor or his legal representatives, remaining in possession, are made liable for rents for the whole time. It would then be absurd to hold that the debtor’s possession was adverse to that of the creditor, when the title and possession ofboth is identical. — Rev. Laws. Chap. 28, Sec. 6.

The fact too that the conveyance by the marshall is a conveyance by operation of law and not by contract between the parties, clearly puts the case out of the statute. This point has been decided in relation to conveyance by the levy of an execution, while there was an adverse possession, and holds equally not only as to this case, but all cases where the title is transferred by operation oflaw. The statute in terms is confined to conveyances between party and party by their own contract and consent. It declares the deeds, bargains, &tc. void.- — Farnsworth vs. Converse et al. 1 D. Chip. 120.

It is apparent too that the statute of 1807, as its title imports “To prevent fraudulent speculations” &c. could never have been intended to affect a conveyance in any form either by the state or United States government. The sovereignty either entire, or as in case of the United States, the sovereignty sub modo, being so clearly not within the mischief to be remedied or the import of the statute, ought not to be affected by it. This disposes of another point which was insisted upon at bar, that the plaintiff’s title was barred by the statute of limitations.

There being no adverse possession shown, the title would not be affected by the statute of limitations. The only remaining question is whether the plaintiff declaring on his own seizin is bound to show his appointment as executor and the probate of the will under the general issue. And we have 150 doubt be is. When an executor or administrator declares upon his own seizin in that capacity he is bound, even under the general issue, to show his appointment as a part of his title, in order majce out [j¡s case> — Mearsfield vs. Marsh, 2 Ld. Ray. 824, Hunt vs. Stevens, 4 Camp. 272, Saund. Rep. 47.

When plaintiff declares on a seizin, in ejectment, in the life time of bis testator or intestate, and the defendant pleads the general issue, plaintiff is not bound to show his appointment. And if the defendant would drive him to that, he must plead speacially we unques &c. In the case of Clapp, Administrator, vs. Beardsley, 1 Vt. 151, it is decided generally that in ejectment on the general issue, the plaintiff who serves as executor or administrator is not bound to show his appointment. The case does not show whether the plaintiff counted upon his own seizin or that of his intestate.

It was upon that of his intestate or the case is not law. For this cause the defendant is entitled to a new trial. The probate of the will and appointment of the executor in due form being produced, judgment was affirmed,