#### Joseph Emerson *versus*Elijah Upton.

An amendment made by leave of court, by an officer, to his return on a writ, ca:inoi affect the rights of persons not parties to the suit, acquired before the amendment is made. 0

An officer returned on a writ, that he had attached a piece of land of the debtor on a certain day. Before that day a mortgage made by the debtor had been placed on record. The officer afterwards, by leave of court, amended his return so as to date the attachment before the recording of the mortgage, though not before its delivery; and the land was seasonably set off to the creditor on an execution issuing in the case. Held, that the title of the mortgagee should prevail over that of the judgment creditor.

This was a writ of entry to recover possession of a piece of land in Newbury.

The case was submitted upon the following agreed statement of facts.

On May 23d, 1826, the demandant, who was then the owner of the land, sold and conveyed it to Moses Stickney, by a deed which was duly recorded before the attachment mentioned below. Stickney at the same time mortgaged the land to the demandant to secure the purchase money, which still remained unpaid. The mortgage was not placed on record until May 22d, 1827 ; and Stickney continued in possession of the land until about the same time, when the demandant took possession of it.

The tenant, having a demand against Stickney, sued him at the Common Pleas for June 1827 ; the officer who served the writ, returned under the date “ of *June*6th, 1827,” that he had attached the land which is now in dispute. At the September term 1827 of the Common Pleas, the officer, on motion and affidavit, had leave to amend his return, by substituting *March*for *June,*as the date of his attachment; the motion being resisted pn behalf of subsequently attaching creditors.

The evidence was sufficient to show that the date of June 6 th, had been inserted by mistake instead of March 6th. The tenant having obtained judgment against Stickney at the December term 1827, of the Common Pleas, took out execution, and had it. levied within thirty days upon the land as' Stickney’s property. The levy was seasonably recorded and the execution duly returned to the clerk’s office.

*171The demandant was to be nonsuited or the tenant to be defaulted, according to the opinion of the Court.

Minot, for the demandant.

The amendment made by the officer could only affect the parties to the suit in which it was made ; but cannot affect the rights of any other persons, which must depend upon the original return. *Williams*v. Brackett, 8 Mass. R. 240 ; *Putnam*v. *Hall, 3*Pick. 445.

*Choate,*for the tenant.

Whether the Common Pleas acted discreetly or not in allowing the amendment of the return, cannot be questioned here. If it could be questioned, the proper course would have been to file exceptions. *Purple*v. *Clark,*5 Pick. 206 ; *Reynard*v. *Brecknell,*4 Pick. 302 ; *Thatcher*v. *Miller,*13 Mass. R. 270. The return of the officer is conclusive on the debtor and all claiming under him ; *Bean*v. *Parker,*17 Mass. R. 600; *Slayton*v. *Chester,*4 Mass. R. 478 ; *Bott*v. *Burnell,*9 Mass. R. 96 ; *S. C.*11 Mass. R. 163 ; *Estabrook*v. *Hapgood,*10 Mass. R. 313 ; Com. Dig. *Return, G; Freeman*v. *Paul, 3*Greenleaf, 260; Dalt. Sher. 189, *ch.*42 ; *Lewis*v. *Blair,*1 N. Hamp. R. 68; *Whiting*v. *Bradley,*2 N. Hamp. R. 79.

Parker C. J.

drew up the opinion of the Court. The demandant’s right to recover possession of the premises demanded is perfect, unless defeated by the levy made by the tenant to satisfy the judgment which he had recovered against Moses Stickney.

The title of Stickney proceeded from the demandant, and was restored to him by the mortgage deed from Stickney. The deed to Stickney being on record exposed the land to the attachment of any of *his*creditors, so long as the mortgage deed remained unrecorded ; but if not attached during that period, it was not liable to the debts of Stickney. By the writ of attachment and the return thereon by the officer, until amended, it would appear that Stickney had nothing which could be attached but the right in equity to redeem ; for the mortgage deed was recorded on the 27th of May, and the attachment was apparently not made until the 6th of June following. A purchaser for a valuable consideration, ignorant of any attachment before his purchase, would unquestionably have held against a creditor claiming under that attachment; and no amendment of the *172officer’s return would defeat his title. It would be unreasonable that one who had purchased an apparently good title, should lose his estate by a subsequent alteration of the state of things made by an officer who had become chargeable for omission or neglect of duty, and who is under so strong temptation to protect himself to the prejudice of another party. The writ must be presumed to have been filed with the return upon it, stating that the land was attached on the 6th of June, at the term to which it was returnable. It remains on the files until the next succeeding term, when leave is obtained for the officer to amend his return, carrying back the attachment to the 6th of March preceding. Shall this prejudice a title acquired in the interval ? We think it ought not to. There is negligence in the officer, which he ought not to be permitted to repair at the expense of others.

The demandant’s case is at least as meritorious as that of a subsequent purchaser without notice. He took the mortgage as security for the price of the same land, which he had sold to Stickney, on the same day that he conveyed to Stickney. By omitting to register his mortgage deed, he left the land exposed to attachment by Stickney’s creditors ; but the only evidence of such attachment is the return of the officer. He records his mortgage when there is no evidence of an intervening attachment. In equity we think he is as well entitled to hold under his deed, as the creditor would be to hold under an attachment appearing to be made before the deed was on re cord. We do not interfere with the rights of the Court of Common Pleas to allow the officer to alter his return ; from the evidence on which that court acted, we presume they had sufficient ground to be satisfied that the attachment was made on the 6th of March. But they did not decide on the effect of the amendment, nor could they, so as to bind this Court upon any question arising out of the proceedings, which might affect the rights of third persons. The whole matter appearing of record to us, the original return and the subsequent amendment, we must decide on the legal effect upon the plaintiff’s title, and we are satisfied that the title is not impaired by the attachment as proved. A different decision would be produc- • tive, we apprehend, of great mischief. The time when an *173attachment is actually made, of real estate, can never be a subject of proof, if the officer shall choose, as he generally does, to act in this respect without witnesses. It is supposed that he is not obliged even to go upon the land, but may in his own house or office, by writing and signing a return upon a writ, create a legal lien upon land any where within the county ;` 1 or if this be not so, he is required to do no act of notoriety, to take no witness', to erect no signal of attachment. He has then under his control, the rights of parties, which he can dispose of as he pleases, postponing one to another, and giving preferences, without being amenable, because without proof. He should be bound then by the official stamp which he gives to his proceedings, there being no other guard or check upon him. He should at least make a minute of his doings at the very moment when the act is to have its legal operation, and not, after months have elapsed, be permitted to retrace his steps and change the whole effect of his proceedings, as apparent by his official return. Being liable for a neglect to attach as soon as he might, the temptation to protect himself by correcting supposed errors, renders it unsafe to confide in him. It is better for the public and for officers themselves, that they should be dealt with strictly, for mistakes will increase with the indulgence that is used towards them. We do not find in any of the cases cited, any intimation that an amendment of an officer’s return will have the operation to defeat the rights of a third party, which would be valid without such an amendment. The cases from our own reports show only that the return of an officer is conclusive, but what shall be considered his return is not determined. The case of *Williams*v. Brackett, 8 Mass. R. 240, has a strong bearing against the tenant’s position, as has also the case of *Freeman*v. Paul, 3 Greenleaf, 260. And it will be found on examination of the cases in which amendments of writs have been granted, that the effect of them, when any change has been made, has been limited to the parties to the suit in which the amendment is granted.1

*174We are all, therefore, after much deliberation, of opinion that the demandant’s title to the land is unaffected by the at- ‘ tachment, and therefore that the tenant must be defaulted.

See *Taylor v. Mixter,*11 Pick. 341; *Crosby*v. Allen, 5 Greenleaf, 453.

See *Means*v. *Osgood,*7 Greenleaf, 146; *Bowman*v. *Stark,*6 N. Hamp. R. 159; *Brainard*v. Burton, 5 Vermont R. 97; *Johnson*v. *Day,*17 Pick. 106; *Haven*v. *Snow,*14 Pick 28; *Mahurin v.*Brackett, 5 N. Hamp. R. 9; *Spear v*
        *174
        *Sturdivant,*14 Maine R. (2 Shepley,) 263; *Howard*v. *Turner,*6 Greenleaf, 106; *Porter*v. *Haskell,*2 Fairfield, 177; *Smith*v. *Daniel,*3 Murphey, 128; *Berry*v. *Spear,*13 Maine R. (1 Shepley,) 187; *Bannister*v *Higginson,*15 Maine R. (3 Shepley,) 73; *Honey*v *Waite,*17 Pick. 196