(1) (2) SANTEE RIVER COMPANY vs. GEORGE E. WEBSTER. PROVIDENCE-FEBRUARY 14, 1902. PRESENT: Stiness, C. J., Tillinghast and Rogers, JJ. (1) Attachment. Bonds to Release. The bond given to release an attachment by trustee process, under Gen. Laws R. I. cap. 253, §§ 23-25, should be given to the officer who served the writ. (2) Attachments. Bonds to Release. Liability of Clerk. Where a defendant offers a good bond under Gen. Laws R. I. cap. 253, §§ 23-25, it is the duty of the clerk or officer to accept it. In so doing, having used due care and reasonable discretion, he incurs no personal liability. The duty of the clerk of the court to which the writ is returnable to accept the bond given under Gen. Laws R. I. cap. 253, §§ 23-25, to release an attachment by trustee process, is so far a ministerial duty that mandamus can be invoked. MANDAMUS against clerk of Common Pleas Division. Heard on demurrer to return. Demurrer sustained. STINESS, C. J. The return to the petition sets up two grounds of answer. 1. That it does not appear in Gen. Laws, cap. 253, § 25, to whom the bond should run. The plain import of section 23 is that the bond shall be given to the officer who served the writ. Section 25 provides that "such bond," that is, the bond to the officer, shall be delivered to the clerk of the court, if the writ shall have been returned to court. Upon such an interpretation of the statute the clerk of this Division has received bonds running to the officer. 2. That the clerk cannot accept the bond and discharge the attachment without incurring personal liability, even with the exercise of due care. Section 25 clearly provides that after return of the writ into court; "or in case the officer who served such writ shall from any cause be unable to perform the duties mentioned in (3) section 24," the clerk of the court to which the writ is returnable shall proceed in the manner provided in sections 23 and 24. The clerk, then, is to do what the officer would do. He is to examine the bond to see if it is satisfactory. If it is, he is to accept it and give a certified copy of the writ with an endorsement setting forth that he has accepted the bond and released the attachment. The purpose of the act is to release an attachment by trustee process in the same way that an attachment of goods and chattels is released by the giving of a bond. The clerk, like the officer, is bound to see that the bond is satisfactory in form and sureties, but, having done this with reasonable care, if he is satisfied that the bond is good he is bound to accept it and discharge the attachment; otherwise the purpose of the statute would be defeated. The acceptance of the bond is like the acceptance of bail. An officer is not an insurer of the solvency of bail, or of sureties on a bond to release an attachment. He must use reasonable discretion to secure a good bond, but he is not liable if, having done so, the surety should prove not to be good. Mechem on Pub. Officers, $$ 761, 762. If the defendant offers a good bond, it is the duty of the officer, or clerk, as the case may be, to accept it. In so doing, having used due care and reasonable discretion, he incurs no personal liability any more than he does in the performance of any other official act. The facts being admitted, that the surety company offered is authorized to do business in this State and is entitled to credit, the duty of the clerk to accept the bond and discharge the attachment is so far a ministerial duty that mandamus can be invoked. The demurrer to the return is sustained. J. W. Hogan, for petitioner. Geo. E. Webster, pro se. 23 601 EDWARD K. GLEZEN, Trustee, vs. WILLIAM T. HASKINS. PROVIDENCE-FEBRUARY 14, 1902. PRESENT: Stiness, C. J., Tillinghast and Rogers, JJ. (1) Ejectment. Adverse Possession. Evidence. Plaintiff, in an action of ejectment, claimed under foreclosure of a mortgage. Defendant claimed by adverse possession as against both plaintiff and the mortgagor. To show his title plaintiff offered evidence that while the mortgage conveyed only a life-estate, a decree was subsequently entered to reform the mortgage so as to convey a fee, and that after the decree a new mortgage was given as of date of the former. Defendant objected :- Held, that the evidence was admissible to show plaintiff's title, and, moreover, as such reformation could not affect any independent rights of the defendant, its admission could not prejudice him. (2) Ejectment. Adverse Possession. Evidence. Presumed from Lapse of Time. Mortgages. Payment Held, further, that payment of the mortgage would not be presumed by mere lapse of time, since the decree in a suit in which the mortgagor was a party rebutted the presumption of payment, and the defendant was not privy in title with either the mortgagor or mortgagee. (3) Ejectment. Mortgages. Adverse Possession. Disseizin. A mortgagee is not disseized by an adverse possession begun after his mortgage, and can convey his estate, as mortgagee, to a purchaser. (4) Adverse Possession. In an action of ejectment, where defendant claims by adverse possession, a verdict for the plaintiff is not against the evidence where it appears that defendant entered upon the land as a tenant and it does not appear that the owner was ever notified that defendant's holding had become adverse and it is uncertain when the adverse possession began. TRESPASS AND EJECTMENT. Heard on petition of defendant for new trial, and petition denied. STINESS, C. J. After verdict for the plaintiff in an action of ejectment, the defendant petitions for a new trial, alleging as grounds therefor erroneous rulings and verdict against the evidence. The plaintiff claimed title by a sale under a mortgage given by Albert K. Barnes, dated May 11, 1875, to Abraham H. Okie, trustee, who had sold the land in question 27 559 (1) to Barnes on the same day and taken the mortgage back. The mortgagee having died, the plaintiff was appointed administrator of his estate, and in seeking to foreclose the mortgage under the power of sale it appeared that the mortgage conveyed only a life-estate; and, upon a bill filed, a decree was entered in this court April 10, 1900, to reform the mortgage by inserting the words "heirs, executors, and administrators," so as to convey a fee. Barnes, the mortgagor, was a party to the suit, and after the decree he executed a new mortgage as of the date of May 11, 1875. The decree and deed were offered in evidence by the plaintiff to show his title, and the defendant objected to their admission upon the ground that, as he was not a party to the suit, he was not bound by them. The decree and deed were admitted, and to this the defendant excepted. There was no error in the admission of these documents. As between the mortgagor and mortgagee the mortgage could be reformed, but of course such reformation would not affect any independent rights of the defendant if he was not a party thereto. For this very reason it was a ruling which could in no wise prejudice him, but which was necessary to the plaintiff in showing his title. If the defendant had claimed title by an intervening deed, without notice of the defect, a different question would have arisen. In Bullock v. Whipp, 15 R. I. 195, a bill was filed to reform a mortgage by affixing seals. An attaching creditor of the mortgagor was made a party to the suit, and he demurred to the bill. The court held that, as he knew of the equitable claim under the unsealed mortgage at the time of his attachment, the bill could be maintained, because he attached only the interest of the mortgagor in the property, and hence, he had no greater rights than his debtor. Except, however, for some such relation as this, one not a party to a bill to reform would be unaffected by it and could show his independent title in defence. It was therefore proper to admit the documents objected to, as a part of the plaintiff's title, for what they might be worth. They were certainly relevant, because they were links in the title, and (2) as such admissible, just as a deed upon execution sale would be, though the defendant in possession was not a party to the action in which the execution issued. While it is true that in ejectment the plaintiff must recover on the strength of his own title, it follows that he should be allowed to show what that title is. Then, if it is not a prima facie title, he must fail; if it is, the defendant must show a better title. The defence in this case was adverse possession for more than twenty years. The decree and deed could not affect the title by possession. If made out, it would be good, whatever the terms of the mortgage might be. The documents were necessary for the plaintiff, in no way prejudicial to the defendant, neither incompetent nor irrelevant, and were therefore admissible. The defendant requested the court to instruct the jury: "If the jury find that the mortgage from Albert K. Barnes to Abraham H. Okie, trustee, was made in 1875 and was not foreclosed until 1898, then, no other facts appearing, said mortgage is presumed to have been paid and no title passed to the plaintiff." This request was refused, and the defendant excepted. We think that the request was rightly refused, for the reason that the decree of this court, in a suit to which the mortgagor was a party, reforming the mortgage, rebuts the presumption of payment. If the mortgagor, or his privy in title, had denied his liability, and nothing appeared to show a liability during twenty years, without doubt the court would have applied the rule which the defendant invokes. Such was the case in most of the authorities cited by him. They were cases between parties or privies in title. The defendant in this case is not privy in title with either the mortgagor or mortgagee. On the contrary, he claims by a title of possession adverse to both. If he has had such possession for the statutory time, he holds the estate against both, whether the mortgage is regarded as paid or not, and a presumption of payment or an express recognition of the mortgage by the mortgagor could. not affect him. He has no need to resort to a presumption. |