Petition for partition, in which the title to the land claimed by the petitioner is put in issue. Both parties claim by levies under Thomas A. Cunningham. The first was, made May 24, 1878, under an attachment dated March 23,1876, in favor of William M. Bust, who conveyed his interest to one of the respondents by deed, dated May 26, 1879. The petitioner’s levy was made under an attachment dated February 21, 1878. Thus if the Bust levy was valid the petitioner must fail. Otherwise he is entitled to judgment for partition as prayed for, as it is conceded that his attachment was valid, and his levy seasonable and in compliance with the law.
To the first levy it is objected that the officer’s return fails to show any authority on his part to choose an appraiser in behalf of the debtor, but does show that he did so. It appears from the return and by the record, that the debtor was not a resident of' this state, but it does not appear that he had no attorney within the county, or that any one was notified as an attorney, and neglected or refused to choose an appraiser. It is conceded that as the record now stands, the levy is fatally defective. But it is-claimed that the return fails to give the whole truth, and the-officer asks leave to amend. The amendment asked, if allowable,, would heal the defect, and the evidence offered, satisfactorily-*38shows that it is in accordance with the truth. But the objection to it is, that it comes too late. Another levy has been made in behalf of a subsequent attaching creditor. When this last was made the records shew no valid levy before it, and so far as they appeared, the title ivas still in the debtor. The amendment, if allowed, changes the record title from one to another, and makes the record to which the petitioner had a right to look for the title, and upon which the law authorized him to rely, of no effect. Lumbert v. Hill, 41 Maine, 475; Boynton v. Grant, 52 Maine, 220.
It is, however, claimed that this principle, though well settled, does not apply here, because the petitioner, who is the creditor in the second levy, had actual notice of the facts, that the amendment proposes to add, and, therefore, had notice that the law was fully complied with. ' This is, perhaps, true. The case shows that he was the attorney pf the debtor, and as such, had due notice to choose an appraiser, and Knight v. Taylor, 67 Maine, 591 is relied upon. That case is undoubtedly good law, but is not applicable to this. In that the respondent was a subsequent purchaser, and took his title with the full knowledge that in fact the levy was legally made. As against him, therefore, the amendment was allowable. In this case the petitioner is a subsequent attaching creditor. His title does not date from his levy. That was only the completion of what was begun by the .attachment, and from that is his title dated. This attachment was prior to the levy, proposed to be amended. He did not, •therefore, take his title with a knowledge of the proceedings in •question, but in fact before they had taken place. Hence, the notice he did have, can in no way affect his rights. Emerson v. Littlefield, 12 Maine, 148.
Nor is the respondent in a condition to ask any benefit from the amendment. Her deed is since the levy and the record. She took her title with the return and record, as it now is, and legally with a knowledge of its defect. She must, therefore, abide the •.result.
*39As the first defect is fatal it is unnecessary to examine the other.
Judgment for partition.
APPLETON, C. J., WALTON, VIRGIN, PETERS and SrJUONDS. JJ., concurred.