Several objections have been raised against the validity of the officer’s return, which will now be considered. Here I admit the principle advanced by the counsel, and adopted by those members of the Court who dissent from the opinion to be given, that every requisite to a valid levy must appear on the return, by express words, or by reasonable construction.
1. It is suggested, that several items in the bill of fees charged by the officer, and for which, as well as for the debt, the land was taken, were not provided for, by the statute on this subject. This is true ; and were this a fatal objection, still it is removed by the confirmatory act of May, 1826. That this act is constitutional, and did embrace this precise objection» was decided, by this Court, in the case of Beach & al. v. Walker, 6 Conn. Rep. 190.; and the principle ofthat decision was recognized recently, at Hartford, in the case of Norton v. Pettibone & al. 7 Conn. Rep. 319.
2. It is said, that the officer has not returned, that he could not find any personal property whereon to levy, &c. He has certified, that he demanded of two of the debtors in person, and of the other at his usual place of abode, money to pay the execution, or personal property whereon to levy, and a refusal of the debtors to pay the execution or expose property. What moré could have been done? Was he bound to search *366for property further ? In the absence of all proof that personal property of the debtor might have been found, upon the exercise of any reasonable diligence, the officer has done his duty, or at least, he has done enough to shut the mouth of the defendant, according to the 74th and 76th sections of the statute above-mentioned. Let it be remembered, that the debtor, Thompson Booth, whose land was taken, sets up this objection,
3. It is objected, that by this return, it does not appear that the land was set off to the creditor. The answer is, the land was levied upon, and the right and title of the defendant was appraised, and that was set off. This is a statute conveyance of the land. The right and title to land is the whole of the land. It gives to the plaintiff the right to the use, occupation and disposal of it, and of course, the entire ownership of it. Co. Litt. 145. b. Hitchcock v. Hotchkiss, 1 Conn. Rep. 470. Camp v. Smith, 5 Conn. Rep. 80.
4. It is not alleged, that the justice of the peace, who appoint-ad an appraiser, could judge between the parties. Who ever supposed before, that such an allegation was necessary ? It might, with as much propriety, be contended, that it should appear that he was not insane by the visitation of God. It is never necessary, in pleading, to negative the exceptions which may exist against a judge or justice, before whom a suit is commenced.
There are two other objections, which deserve more consideration.
5. It is insisted, that it should appear, by the officer’s return, that the appraisers were indifferent freeholders of the town in which the land lies. I concur in this opinion. The statute requires, that where land is set off on an execution, it should be appraised by indifferent freeholders of the town where it lies. The officer, as is agreed, has certified, that they were “ freeholders of the town.” The only question then, is, does it appear that they were indifferent 1 Now, they have given to the officer a certificate that they were thus indifferent; and he has annexed that certificate to his return, and procured it to be returned and recorded in the office of the clerk of the court. This is an adoption of their certificate, and a virtual averment that they were indifferent freeholders. The Chief Justice, in delivering the opinion of the Court, in Pendleton v. Button, 3 Conn. Rep. 406. says : “ The act of the justice in appointing *367and swearing an apraiser, implies that he is indifferent and unexceptionable.” The officer has annexed not only (he cerii-ficate of the appraisers above-mentioned, but also the certificate of the justice, that he appointed and administered the oath to those named appraisers. The officer, moreover, has certified, that the appraisers were appointed and duly sworn according to law. This brings this case within the principle of Pendleton v. Button. The idea that these certificates, thus appended, would remedy the defect in the officer’s return, is also fully recognized, by the supreme court of Massachusetts, in the case of Williams v. Amory, 14 Mass. Rep. 28. 29.
6. The last objection is, that it does not appear by the return of the officer, that the appraisers delivered a certificate of their appraisal to the officer, or that they ever made any such certificate ; and this objection is said to bring the case directly within the decision of Metcalf v. Gillet, 5 Conn. Rep. 400. I do not so consider it. In that case, no mention was made, by the officer, of any certificate of appraisal. No certificate was appended or annexed ; nor was any intimation made, that one was ever given. To supply this defect, parol evidence was offered, to shew, that such certificate was made by the appraisers. This was very properly rejected. In this case, the certificate made by the appraisers, is annexed to the return, and by the officer lodged with the clerk. A copy is now of-, fered of the whole from the clerk. By fair implication, then, this certificate was in the possession of the officer. But it is said, that it must have been in his possession, by delivery of the appraisers, before he set off the land ; for the statute is, that “ thereupon (i. e. upon the certificate’s being delivered to him) he shall set out to the creditor,” &c. Suppose this to be the true construction of the act, I insist, that it is but a reasonable construction of his return, that he had it before he set out, or set off, the land ; because he could not set it off before he knew its value, and he could not know its value but by the certificate of the appraisers ; but he did set it off, knowing its value ; for he asserts its value in his return. Then take for a guide a plain rule of law, that every man acting officially, shall be presumed to have done his duty until the contrary appears ; it ought to be presumed, that this certificate was delivered to him before he set off the land.
Thus it would stand upon the most rigid construction of the statute. But it is difficult for me to see any force in the sug-*368gestión, that these acts of the officer ought to appear to have been done in any certain consecutive order, The land is transferred when certain acts have been done. These acts, if done at all, will be presumed to have been done in the order required by the statute, unless the contrary appear. Omnia pressu-muniur rite et solenniter esse acta. Again ; for what purpose Were these certificates annexed by the officer, and carried to the clerk to record, except as parcel of his doings — his return ? By that act, he adopted them, and virtually attested them. It it is quite immaterial whether his attestation preceded or followed those certificates. In either case, he must be deemed to have sanctioned them. In view of the whole ground presented in this case, I am well satisfied, that the officer’s return is sufficient ; and that this advice be given to the superior court.
Williams and. Bissell, Js. were of the same opinion.