but his right therein assigned to the creditor, and a return made accordingly.51

(v) The appraisement and special designation of the estate must precede the delivery of seisin and possession; and any prior attempted delivery thereof is void.52 If the creditor declines to accept seisin at the proper time, the officer should return this with the other facts, and that the same is in no part satisfied.52 The creditor is not obliged to accept seisin; and upon return by the officer of his refusal, he is entitled to have an alias execution; but the original execution cannot be superseded.52

(w) If, under a will, a devisee take an estate in fee, subject to a life trust for the benefit of another, his creditor, by a levy of his estate in remainder, can take no enjoyment of the income until the death of the devisee.53

13. A levy may be made on land fraudulently conveyed by a debtor, or of which he has been disseized and into which he has a right of entry. In such case the tenant in possession is not to be ousted, but the officer shall deliver to the creditor a momentary seisin, which shall be sufficient to enable him to maintain an action for its recovery in his own name.54

(x) Under this section the creditor by a levy is placed in the same situation after the levy as the debtor was before; and has afforded him the opportunity to try the title with the tenant, upon the seisin obtained from the officer,55 even when the fraudulent grantee has quitclaimed all his right, title and interest to a third person.55 The plaintiff in an action of tort becomes a "creditor" when he recovers his judgment.56 The foregoing section contains no exception in favor of insolvent estates; hence, if an administrator of an estate represented as insolvent assume the defense of an action pending against his intestate, and neglect to suggest the insolvency upon the record, the execution upon the judgment recovered against the administrator may be legally levied on the real estate of the intestate fraudulently conveyed by him.57 creditor may then perfect his title by bill in equity.57a

The

(xx) A creditor's remedy against a husband who paid for land conveyed to his wife and never held the title himself, is in equity and not by levy,576

14. When the debt had been previously assigned for a valuable consideration, the creditor named in the execu tion holds an estate levied on to satisfy it, in trust for his assignee, who is entitled to a conveyance thereof, which may be enforced by a bill in equity.5

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(y) In the making of such a levy, if the assignment be stated in the appraisers' certificate, such statement is notice of the

51 R. S. c. 76, § 12.-52 Darling v. Rollins, 18 Me. 405.-53 Butterfield v. Has kins, 33 Me. 392.54 R. S. c. 76, § 13.-55 Abbott v. Sturdivant, 30 Me. 40; Morse v. Sleeper, 58 Me. 329.-50 Hall v. Sands, 52 Me. 355.-57 Wyman v. Fox, 55 Me. 523.ia Wyman v. Fox, 59 Me. 100.-676 Warner v. Moran, 60 Me. 227.—59 R. S. c. 76, § 14.

trust to any attaching creditor of the assignor; 59 and with such notice, he could hold only subject to the trust, and could not maintain a writ of entry against the grantees of the cestui que trust.59 An assignment under the foregoing section may be made by parol, or may be inferred from the conduct of the parties. Thus where a creditor sued his debtor and attached property, and a third person receipted for the property and obligated himself to pay the execution as surety for the debtor, and upon recovery of the judgment and issuing of the execution did pay the amount thereof to the officer, who thereupon delivered the execution to the receipter as his own, the same being in no way discharged, and the officer paid the money to the creditor who received the same, the receipter had the rights of an assignee. But a levy on real estate in the name of him for whose benefit the judgment is alleged in the execution to have been recovered is invalid.61

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15. The officer is to return the execution into the clerk's office, where returnable, and within three months after completing the levy, cause it, with the return thereon, to be recorded in the registry of deeds where the land lies.62

(2) The time of returning the execution, extended on land to the clerk's office, is not material, if it has been recorded in the registry of deeds within three months after the extent.63 In computing the three months, the day on which the levy is made should be excluded.64 What constitutes a completion has not been decided in this State, but it would seem to be the time when seisin is delivered.65 The record of an officer's return must show the seizure to have been within thirty days after judgment, to be good as against intervening bona fide purchasers.66

16. When not so recorded, the levy will be void against a person who has purchased for a valuable consideration, or has attached or taken on execution the same premises without actual notice thereof. If the levy is recorded after the three months, it will be valid against a conveyance, attachment, or levy made after such record.67

(a) The fact of notice must be proved by indubitable evidence; either by direct evidence of the fact, or by proving other facts, from which it may be clearly inferred, and the inference must be necessary and unquestionable.68 Hence, the mere fact that the second levying creditor acted as an appraiser in making the former, is not sufficiently decisive evidence of notice to defeat the priority of the second levy seasonably recorded.68 The record of a return without the officer's signature to the return to

Warren v. Ireland, 29 Me. 62; Sawyer v. Skowhegan, 57 Me. 500.-00 Garnsey v. Gardner, 49 Me. 167.-61 Mysroll v. Violette, 55 Me. 108.-02 R. S. c. 76, § 15.-63 Emerson v. Towle, 5 Me. 197.-04 Berry v. Spear, 13 Me. 187.-65 Pope v. Cutler, 22 Me. 105; Balch v. Pattee, 38 Me. 353.-66 Boynton v. Grant, 52 Me. 220.07 R. S. c. 76, § 16.-cs Doe v. Flake, 17 Me. 249

authenticate it, cannot be considered such a record as is contemplated by § 16.69

17. A creditor, who has received seisin of a levy not recorded, cannot waive it, unless the estate was not the property of the debtor, or not liable to seizure on execution, or cannot be held by the levy, when it may be considered void, and he may resort to any other remedy for the satisfaction of his judgment.7

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(b) If there be inherent defects in the return, or if the land is appraised too high, the creditor may waive the extent, at any time before acceptance, but not afterwards.71

18. When the execution has been recorded, and the estate levied on does not pass by the levy for causes named in the preceding section, the creditor may sue out of the office of the clerk, issuing the execution, a writ of scirefacias, requiring the debtor to show cause why an alias execution should not be issued on the same judgment; and if the debtor, after being duly summoned, does not show sufficient cause, the levy may be set aside, and an alias execution issued for the amount then due on the judgment, unless during its pendency the debtor tenders in court a deed of release of the land levied on, and makes it appear that the land, at the time of the levy, was and still is his property, and pays the expenses of the levy and the taxable costs of the suit; and the judgment shall be satisfied for the amount of the levy.71a

(c) The remedy provided in the foregoing section does not apply to a case where there has been a sale of an equity of redemption of real estate, and no interest passed thereby, because there was no subsisting mortgage at the time of the seizure.72 Scire-facias is the only remedy after the record of the levy to revive the judgment.73 And section eighteen is not modified by § 27; but the remedies provided in the two sections are independent and consistent.74

19. For the purpose of fixing the amount due on the execution, and the time when the debtor's right to redeem will expire in levies already made, or to be made, they are to be considered as commenced on the day of the date of the administration of the oath to the appraisers, although it may appear, by the return of the officer, that the estate

69 Stevens v. Batchelder, 28 Me. 218.-70 R. S. c. 76, § 17.-71 Gorham v. Blazo, 2 Me. 232; Grosvenor v. Chesley, 48 Me. 369.-71a R. S. c. 76, § 18.-72 Pillsbury v. Smith, 25 Me. 427.—73 Grosvenor v. Chesley, 48 Me. 369; Soule v. Buck, 55 Me. 30. 74 Soule v. Buck, supra.

was seized on execution before, or that the proceedings were not completed till after that day,75

20. When, by an error of the officer in a levy already made, or to be made, the amount, for which it was made, exceeds the amount of debt or damage, costs, interest, and costs of levy, by a sum not greater than one per cent of said amount, such levy shall be legal and valid, if otherwise legally made; and the debtor or owner of the estate may maintain an action against such officer or his principal, to recover any damages occasioned thereby, or a bill in equity against the creditor to have such error corrected, and the court may correct it, in any manner that may be just and equitable, or decree a pecuniary compensation for the injury.76

(d) Where there are several separate levies, made on several tracts of land, in satisfaction of one execution, and the total amount of the levies exceeds the sum for which the officer was authorized to make the extent, the amount of the appraisement of the last tract levied upon exceeding the excess, none of the levies, unless the last, are void for that cause.77 Interest is to be computed to the time of seizure.78 Levies, in which illegal fees may have been included, remain unaffected by § 20, and are not to be defeated for that cause.79

21. When a levy so made would not, in a suit commenced before April tenth, eighteen hundred and fifty-six, have been sustained but for the provisions of the two preceding sections, the debtor may redeem, within six months after final judgment in such suit, by paying or tendering to the creditor such sum, as three persons, or a majority of them, appointed by a justice of the supreme judicial court, after giving notice to and affording the parties an opportunity to be heard, shall determine, in writing by them signed, to be due upon the following elements of calculation. The creditor is to be entitled to the amount of the appraisement with interest annually from the time of the levy; and to receive the just value of the improvements made by him, or persons under him, on such portions of the premises as remained unsold on April first, eighteen hundred and fifty-six, and a fair compensation for attending to and taking care of the same. For such por

15 R. S. c. 76, § 19.-76 R. S. c. 76, § 20.-77 Pierce v. Strickland, 26 Me. 277.16 Brown v. Lunt, 37 Me. 423-79 Wilson v. Gannon, 54 Me. 384.

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tion as he had sold before that day, he is to account for the appraised value thereof; and the debtor, or those hold→ ing title under him, shall convey to the creditor or those claiming under him, by a valid deed of quitclaim, the title to the portion so sold.80

REDEMPTION OF LEVIES BY APPRAISEMENT,

22. Real estate levied on may be redeemed within one year thereafter, by paying or tendering to the creditor the amount of its appraisement with interest from the time of levy, with reasonable expenses incurred for its improvement or repair, or in saving it from loss by the non-payment of taxes legally assessed thereon prior to the levy, after deducting rents and profits, with which he is chargeable; and the creditor is thereupon, by his deed, prepared, at the expense of the debtor, to release to him all his title to the premises. When the creditor resides out of the State, or his residence is unknown, such payment shall be sufficient, if made to the clerk of the courts in the county where the real estate levied upon is situated, and such payment shall have the same effect as if paid to the creditor.8

(e) Payment of the money to the attorney of the creditor within one year is good.82 The debtor is not entitled to redeem one of two or more parcels of land, without the others, on which an execution has been extended, even though its value is separately stated in the certificate of the appraisers.83 And if he pay part of the money to redeem land from a levy, but fails to pay the residue and thereby loses the land, he cannot recover back the money.84 The receipt, by a levying creditor, of the amount of his claim, though after the year allowed for redemption, vacates the title derived from the levy.85

(f) If a judgment creditor extend his execution on a portion of the land mortgaged to secure the same debt, and the debtor neglect to redeem for the space of one year thereafter, so much of the estate as is covered by the levy is absolute in the creditor, notwithstanding the mortgage; but he may redeem the residue.

23. The debtor may have the amount due ascertained by three justices of the peace, chosen, one by the debtor, one by the creditor, and the other by those two; if after notice the creditor declines, the debtor may choose two, and after a hearing before the three, they or two of them shall make in writing and sign a certificate of the sum found to be due, which shall be conclusive; and the debtor may tender that sum, which shall be effectual to redeem, though he had before tendered a different sum.

87

80 R. S. c. 76, § 21.81 R. S. c. 76, § 22, Public Laws of 1872, c. 35-82 Gray v. Wass, 1 Me. 257.83 Foss v. Stickney, 5 Me. 390.-84 Morton v. Chandler, 6 Me. 142.85 Randall v. Farnham, 36 Me. 86.-86 Crooker v. Frazier, 52 Me. 405.-87 R. S. c. 76, § 23.