dissenting. The question in this case is, whether a levy on lands, where the execution was returned into the office of the justice and filed there for record within the life of it, but not actually recorded until after the bringing of the action, is valid, to lay a foundation for a recovery in the suit l
It was held, in the cases of Hall v. Hall, 5 Vt. 304, and Downer v. Hazen, 10 Vt. 418, that, where the officer neglected to make return of the execution within its life, the levy could not afterwards be completed, but was inoperative and void. And although intimations have been thrown out, that a record in both the town clerk’s and justice’s office, within the life of the execution, was necessary, to pass the title, yet the question as to the effect of the mere omission to record in the latter office, when the execution had been duly returned there, has never before, that I am aware of, .been presented to the court. I therefore consider-it an open question.
The statute declares [Rev. St. c. 4, § 17] “ that all executions, extended and levied upon real estate, with the return of the officer thereon, being recorded in the office wherein deeds of real estate are by law required to be recorded, and also returned into the office of the clerk of the court, or' justice of the peace, from which such execution issued, and there recorded,. shall,, as against such debtor ” *83&c., make a good title to the creditor. There is no time- specified by the statute, within which these things shall be done; but as the officer- is commanded in the precept itself to make the return of it, with his doings thereon, into the office of the clerk, or justice, within sixty days, and this being his general and known duty, it has been properly held by this court, that the return should be made by the officer within the life of the execution. But I find nothing in the statute, extending the duty of the officer beyond the time of making this return into the office of the clerk, or justice, from which the execution issued. The statute does not prescribe it, as part of his duty, to see that the execution is recorded by the justice. On the contrary, the statute form of the return, which he is required to make on the execution, declares, that “he returns the execution into the office of the clerk of the court, or justice of the peace, from which it issued, together with the sum of seventy five cents, that it mat/ be there recorded — most clearly implying, that, on returning the execution and paying the fees, his duty had ceased, and that the act of recording it in the justice’s office was matter for the justice alone, with which the officer had nothing to do. Finding nothing in the statute requiring the justice to perform this duty in any specified time, I am not prepared to say, that it must be done within the life of the execution. Indeed, as I think the officer has to the last moment of the execution in which to return it, 4 must hold that such requirement of the justice would be impracticable.
Nor can I discover any reasons of public policy, which require that this record should be made by the justice, while the execution is in life. The object of the legislature in requiring this record is not very apparent; at least, it is difficult to discover any very important purpose to be answered by it. It could not have been required for the purpose of giving notice to creditors and subsequent purchasers, because that object is fully accomplished by the previous record in the town clerk’s office. And it is not very easy to perceive, why the original execution and return, which form a part of the official papers of the justice, and which it is his duty to keep on file and preserve, would not answer any purpose of the debtor and creditor, equally as well as a record of it.
The former statute of Connecticut, like ours, required the execution and return to be recorded in the office of the clerk, or jus*84tice, from which it issued; but that requirement has long since been dispensed with, and the execution is now to be merely returned and kept on file. 1 Swift’s Dig. 154-5. The statute of Massachusetts requires that the execution, after the levy and record in the office of the register of deeds, should be “returned into the clerk’s office,” but without any record there; and it has been held in that state, that, although the title of the creditor is not complete until such return of the execution, yet, that the return may be made at any time, before the levy is offered in evidence of the title of the creditor, the statute not specifying any time for such return being made, Prescott v. Pettee, 3 Pick. 331.
I suppose the whole object of our statute, in directing the record to be made in the justice’s office, was to furnish additional security for the preservation of the evidence of the levy, because I can conceive of no other. The recording ■ is, indeed, a statute requirement and cannot be disregarded. But surely, before determining that such record shall be made within a shorter period than the words of the statute require, and at the peril of rendering the levy void, we ought to find some good object to be answered by such determination. I am induced -to think, if the officer make his return of the execution into the office of the justice while it is in life, the levy will not be void, because the justice happens -to. make the record of it after the sixty days 'have expired! I come to .this conclusion not the less readily, from an apprehension which I strongly entertain, that a contrary determination would unséttle very many titles in the state, which have hitherto been deemed valid,
•It is said, ’however, that, the justice’s record in this case not having been made at the time of the commencement of the present suit, the plaintiff’s title was then, at all events, incomplete, and that he should not be allowed to recover, whatever may have been the effect of the subsequent recording upon his title. I confess, I should be willing -to sustain this action, ‘ notwithstanding this objection. I see no insuperable difficulty in treating the time of the recording by the justice as matter affecting the evidence -merely, -as was .done in Massachusetts in Prescott v. Pettee, in regard to the return of the execution into the clerk’s office,- and in holding, that the evidence should be sufficient, if it ’was complete at the time of offering it, I think, also, .that we might properly treat the actual .traps*85cribing of the execution upon the justice’s record as having relation back to the time of the filing of it, and consider the record as having been made when the execution was received for record by the justice, as is done in the recording of deeds. Considering the very trifling importance of this record by the justice, I should have been well satisfied to sustain the present action upon either of those grounds.
But the mere question of whether the action is prematurely brought, or not, is one of no practical importance; and considering that the case of Burton v. Pond, 5 Day 160, upon a statute similar to ours, is directly to the point, that an action brought before the actual making of the record is premature, I am induced to assent to the affirmance of the judgment in this case on that ground.
It does not occur to me, that any practical difficulties are likely to arise in regard to the redemption of the land by the debtor, from holding that the execution need not be recorded within the life of it. The statute provides, that the debtor may redeem within six months “from the time the execution was extended on the land” ; which, as intimated by the court in the case of Hall v. Hall, may be well treated as the time when the acts of the officer, in making the levy, become complete by filing the execution in the office from which it issued. If it be said the levy may never be perfected by the recording of the execution, I think it a sufficient answer, that the debtor will have his election to risk the consequences of a neglect to redeem, or to pay the amount of the levy; and that the worst event which can possibly befall him, by redeeming a defective levy, will be the payment of a just debt,
After the judgment had been pronounced, the judgment of affirmance, upon motion, was not entered up ; but the court, pro forma, reversed the judgment of the county court, and the plaintiff became nonsuit.
Note by Hall, J. In the case of Dixon v. Parmelee, 2 Vt. 187, it would appear to have been held by the supreme court, that a record of the execution and levy in the office of the clerk of the court, made after the action was brought, perfected the title of the creditor, and was sufficient to enable him to sustain the action. The attention of the court was not called to this case, and it was not noticed until after the decision.