The opinion of the Court was drawn up by
Tenney, C. J.Both parties claim title to the land in dispute from Meshach Pike; the tenant, under a levy of an execution, (in favor of Dorrance Davis and another against one Merrow and said Pike,) attempted to be made on May 19, 1846; and the demandant, under a quit-claim deed from said Pike, made subsequent to the levy. It is conceded that, if *355the levy is not legally sufficient to transfer the estate from the debtor Pike to the creditors in the execution, the title is not in them, as the return now stands.
The officer returns upon the execution that G. M. Randall, one of the appraisers, was chosen “by the debtor within named.” Whenever a creditor thinks proper to have his execution levied upon the real estate of his debtor, the officer holding the execution, &c., shall cause such real estate to be appraised by three discreet and disinterested men, one to be chosen by the creditor, one by the officer, and another by the debtor. The latter is entitled to notice from the officer, if he lives in the same county in which the real estate is situated, with an allowance of a reasonable specified time, within which to appoint an appraiser, as before mentioned. R. S. of 1841, c. 94, § 4.
It is very obvious that the Legislature intended that the owner of real estate, about to be taken upon execution, should have the opportunity of appointing an appraiser to assist in the proceedings. And if he did not make this appointment, or be so notified that he could do it, provided his residence was such as to be entitled to the notice, the levy would be void, notwithstanding another debtor in the same execution might make the appointment without the authority of the owner of the real estate. This proposition is not controverted on the part of the tenant. But it is insisted that the return shows that G-. M. Randall was chosen an appraiser by Meshach Pike, the owner of the land levied upon, and one of the debtors in the execution, and, upon the construction put upon the return, that “ by the debtor named” is intended the debtor named in the return of the officer.
This construction is not satisfactory. When any instrument is written upon another instrument, and a person named in the latter is intended to bo referred to in the former, it is usual to use the language, “the within named A. B.,” &c. And so of the subject matter of the instrument upon which some writing is made. The indorsement of the payment of a sum of money upon a promissory note of hand is often in *356the words, “ received twenty dollars,” or whatever the sum may be, “ on the within,” meaning, unquestionably, the note. It is quite manifest that when the officer returned upon the execution on which the levy was made, that an appraiser was chosen by the debtor within named, he referred to the debtor named in the execution. Eor, after dating his return, he says, “ the debtors within named failing to satisfy this execution,” &c. The debtors, in the plural number, are not found in the return at all, by their own proper names, the Meshach Pike, one of them, is mentioned by name, and repeated.
Every thing stated in the officer’s return may be true, and Meshach Pike not have chosen an appraiser, or have had notice to do so. “ The debtor within named,” may as well be conjectured to have been James J. Merrow as Meshach Pike, as there is no absolute certainty that it was one rather than the other.
The case before us is not distinguishable from that of Hathaway v. Larrabee, 21 Maine, 449, in respect to the question which we are now considering. The officer having a writ against three defendants, returned as attached all the right, title and interest, the defendant has in and to any real estate in the county of Penobscot. It was held by the Court that the language was too vague and uncertain to create a lien by attachment on the estate of either one of those defendants.
The return upon the execution, signed by the appraisers, is so defective that it is not insisted, by the party claiming under the levy, that it is sufficient without an amendment to transfer the estate. And it is agreed by the parties that a specified amendment may be made, if the law will authorize it. That question we have not considered, as it appears from the foregoing that such amendment would not avail the tenant, to pass the title, it not being an amendment showing that Pike chose an appraiser.
According to the agreement of the parties, judgment for the demandant.
Hathaway, May, Goodenow, and Davis, J. J., concurred.