íhe opinion of the Court was drawn up by
Goodenow, J.This is an action of trespass against the defendant as sheriff, for the act of his deputy in attaching and selling the property named in the writ as the property of one Samuel W. Barker, but which property the plaintiff claims by virtue of a mortgage, duly executed, but without a seal, except as appears hereafter.
“ It is agreed that the mortgage from Barker to the plaintiff had no seal upon it, neither at the time of the attachment of the property, or at the time it was recorded, Sept. 30, 1858. That the property was attached as aforesaid on the ninth day of October, 1858, at five o’clock, P. M. That the plaintiff caused a seal to be affixed to said mortgage at 1 o’clock, P. M., October 9, 1858, and the same noted on the l’ecord at the same time.”
It is admitted that no fraud is to be imputed to the plaintiff. It was imprudent in him to attempt to affix a seal to his mortgage after an attachment had been made by the defendant’s deputy, and to change the record accordingly. Without this admission, we might have inferred that the transaction was fraudulent. He caused the record to speak of an instrument under seal, when in fact, it was not under seal. It *506was a misapprehension of his rights and of his duty, without any evil intention. His title under the mortgage was perfect without this addition of a seal, which was probably omitted' by mistake, and was earlier in point of time than the attachment, and, therefore, paramount to that of the attaching creditor. According to the agreement of the parties, the defendant must be defaulted to be heard in damages.
Tenney, C. J., and Rice, Appleton, Davis and Kent, JJ., concurred.