
    Eliakim Davis versus Moses Maynard.
    A general return by an officer upon an execution, that, after advertising as Hu law directs, he had sold the debtor’s' right in equity of redeeming certain land, was holden to be insufficient to pass such right to the purchaser.
    Where a mortgage was given to secure the payment of a sum of money due on a promissory note, and the mortgagee afterwards accepted a recognizance for the sum due, and the note was given up, it was holden that the mortgage was not thereby discharged.
    This action was entry sur disseisin, in which the said Davis demands sixty-five acres of land in Rutland, in this county. lie counts on his own seisin in fee simple within twenty years last past, and until disseised by the tenant.
    The cause was tried on the general issue before Parsons, C. J., at the sittings here after the last September term, and by consent of the parties a verdict was taken for the demandant, subject to the opinion of the Court, upon the facts reported by the judge who sat on the trial.
    It was admitted, at the trial, that Bernard Davis was formerly seised in fee simple of the tenements demanded; and it appeared that while so seised, by deed duly executed and recorded, dated the 7th of March, 1807, he conveyed the same in fee simple and in mortgage to Abraham * Wheeler, to secure the payment of 800 dollars on demand with interest, agreeably to the tenor of a promissory note made by the said Bernard to the said Abraham.
    
    Afterwards, at the Court of Common Pleas holden for this county in September, 1808, Daniel Saunders recovered judgment against the said Bernard, for the sum of 228 dollars 18 cents damage, and 9 dollars 63 cents costs of suit; and, on the 30th of the same September, sued out his execution in due form of law on that judgment, which execution was afterwards levied on the equity of redemption remaining in the said Bernard after his said mortgage to the said Abraham, the same having been attached on the said Saunders’s original writ; and the said execution was returned by the sheriff on the 7th of November, 1808, with the following ser'vice endorsed : “ Worcester, ss., November 7, 1808. After advertising, as the law directs, I this day sold at public vendue, to James Holbrook, attorney to the within-named Daniel Saunders, all the right in equity which the within-named Bernard Davis had in redeeming the farm that he now lives on, for 250 dollars, it being the most it would fetch, towards satisfying the within execution, and all fees; which fees were travel, poundage, service, and expenses in advertising, and the deed, &c., 12 dollars 46 cents. Timothy JRuggles, deputy sheriff.” There was endorsed, as of the same date, Saunders’s receipt for the 250 dollars, in part satisfaction of the execution; also, on the 17th of the same November, Saunders endorsed an acknowledgment, that he had received seisin and possession of the above-described premises, with the buildings thereon, in part satisfaction of the said execution. On the 8th of November, Buggies executed a conveyance to Saunders, in due form, of the equity, reciting therein that he had first given notice of the auction agreeably to law.
    On the 11th of March, 1809, VfJieeler, the mortgagee, received of Bernard Davis, the mortgagor, a recognizance acknowledged on that day, before Daniel Walker, a justice * of the peace, by the mortgagor to the mortgagee, for 852 dollars, being the sum then due on the note aforesaid, to be paid on the 7th of April ensuing. And, on the said acknowledgment, the said Wheeler left his said note with the said justice, who, after. wards, without any direction from Wheeler, delivered the note to the said Bernard Davis.
    
    Afterwards, on the 25th of March, 1809, Wheeler, by deed duly executed, released all his right in the mortgaged estate to the said Saunders in fee simple, and at the same time delivered him the said recognizance, with a letter of attorney, authorizing him to cause the same to be executed in the name of Wheeler, but for the use of Saunders; who entered and took possession of the demanded premises in March, 1809; Bernard Davis assenting, to avoid a lawsuit; and the tenant entered under Saunders, whose right in the estate he has.
    At the Common Pleas holden for the county of Worcester, in June, 1809, the demandant recovered judgment against the said Bernard Davis for 653 dollars 70 cents damages, and 6 dollars 49 cents costs of suit; and, on the 10th of July, in the same year, execution, duly issued on that judgment, was levied in due form of law on the demanded premises, and seisin delivered to the demand-ant, who then entered thereon; and, immediately after, the tenant reentered upon him.
    The tenant, by his counsel, moved to give evidence that, notwithstanding the general recital in the return made by Buggies on Saunders’s execution, and also in his deed to Saunders, the auction was, in fact, advertised, and notice given to the debtor, agreeably to the requisitions of the statute ; but the judge rejected this evidence.
    If, on the facts aforesaid, the Court should be of opinion that the equity of redemption of Bernard Davis passed by Buggies’s levy and sale thereof to Saunders, or that Wheeler’s mortgage was not discharged by the recognizance which he received from Bernard Davis, the verdict was to be set aside, and a general verdict was to be entered for the tenant; but, otherwise, the verdict taken * for the demandant was to stand, and judgment to be entered thereon ; unless the Court should also be of opinion that the evidence of the advertisement, and notice offered by the tenant, ought to have been admitted by the judge ; in which last case, the verdict was to be set aside, and a new trial to be ordered.
    The action stood continued to this term for argument on the report.
    
      Blake,
    
    for the tenant, contended that, upon the facts reported, his client was entitled to a verdict. The return by Buggies was sufficient to pass the equity of redemption. The statute  gives specific directions as to the mode of advertising and levying on this species of property; but it nowhere requires the officer, in his return, to relate every particular of his service. The general return on the execution, and the general recital in the deed, are prima facie evidence that the provisions of the law were conformed to in the case. In sales of personal property on execution, the statute  is equally minute in its directions, as in those of equities of redemption ; and, in thosé cases, it has always been held sufficient for the officer to return generally that he has conformed to the directions of the law, without showing how. So, also, the deeds of executors or administrators, selling lands for the payment of the debts of their testator or intestate, by order of Court, are held sufficient, though they contain only general recitals and general covenants of their conformity to the law ; and there is no need of showing specifically in what manner. In the case of Livermore vs. Bagley, 
       where a question arose on the validity of a sale of certain articles of personal property, by a sheriff, on execution, which had not been advertised, the Court said that, as the return was, it must be understood that his proceedings were in due form of law; notwithstanding it was expressly found, in the case, that the articles sold had not been advertised. But if the return, thus generally made, was insufficient, paroi evidence ought to have been received, by which a precise * conformity to the directions of the statute, on the part of the officer, would have appeared.
    The accepting a recognizance, in lieu of the note of hand, for securing which the mortgage was given, although an extinguishment of the note, was not an extinguishment of the mortgage or collateral security for the money, which was still due. A statute staple, accepted in satisfaction of a prior obligation for money due, has been held to be no satisfaction; and although the statute be matter of record, and higher than the obligation, yet the latter remains in force; and the obligee hath his election to sue the one or the other. 
    
    
      Lincoln,
    
    for the demandant, contended that the return by Rug gles was wholly insufficient to transfer the property. In the case of Lancaster vs. Pope & Al., 
       where a committee of the Sessions had made a general return on a warrant for laying out a highway,that, agreeable to the directions of the warrant, they had attended the service therein assigned them, and had laid out the road, &c., the proceedings were quashed because the return was not sufficiently specific. Sedgwick, J., says, the doings of the committee are like the acts of returning officers, who are obliged to certify how 
      and when those acts were performed. Strong, J., says, “ The case has been very properly compared to that of a sheriff, who returns that he has served his precept according to law. Neither sheriffs nor the committee are judges of that; but they are respectively obliged to return specifically what they have done, that the Court may see whether their doings have, or have not,«been according to law.” And this applies even to the sale of personal property by sheriffs.
    In the case of Eddy vs. Knapp, 
       a return was held void, because the sheriff had appointed two appraisers, without certifying that the debtor refused.
    Nor can paroi evidence be admitted to cure this defect in the return. In Purrington vs. Loring, 
       where the question was upon the right of the sheriff to amend his return by paroi evidence, the Court say that such evidence * was not admissible. “ The officer’s return must be in writing.
    He cannot justify by a paroi return, when it is his duty to return his doings in writing. If paroi evidence were admissible, there would be great danger of fraud and perjury.”
    The recognizance was a satisfaction and payment of the note; and this being discharged, the mortgage, which was collateral to it, must be discharged also. A security of a higher nature merges one of an inferior kind. 
    
    
      
       1798, c. 77, § 4.
    
    
      
       1783, c. 57, § 5.
    
    
      
       3 Mass. Rep. 513.
    
    
      
      
        Bac. Abr. Extinguishment, D, cites 6 Co. 44. — Roll. Abr. 470 — Cro. Car. 86.
    
    
      
      
        1 Mass. Rep. 86.
    
    
      
       2 Mass. Rep. 154.
    
    
      
       7 Mass. Rep. 388.
    
    
      
       7 Mass. Rep. 30, Goodenow vs. Tyler. — 1 Burr. 9. — 1 Esp. Dig. 147.
    
   By the Court.

The return of the sheriff upon Saunders’s execution was not sufficient to pass the equity of redemption; nor can paroi evidence be admitted to amend it. Where the law requires the return of an officer to be in writing, the whole of the return must be in writing,

„ On the other point, arising upon the report of the judge, viz., whether the mortgage of Bernard Davis to Wheeler was discharged by the recognizance taken in lieu of the note, it is our opinion that the recognizance had not that operation. The "mortgage and the note were .two distinct securities. Nothing but payment of the debt will discharge the mortgage. This position is grounded on the words of the condition of the mortgage, which always are, that if the money be paid, then the note or bond, as well as the mortgage deed, shall be void; and, otherwise, both shall remain in full force.

By the terms of the contract, nothing but payment is to avoid it The verdict, in this case, is to be set aside, and a general verdict entered for the tenant. 
      
       [In Sawyer vs. Ingersol, (2 Pick. 280,) tlie Court considered it as unsettled, whether, if no return was ever made, the purchaser could maintain his title, or not, by showing that the sale was duly made. As to the effect of a return, made after the sheriff is dead, or out of office, see Welsh vs. Joy, (13 Pick. 477,) and Sawyer vs. Inger sol, (ubi sup.) —Ed.]
     
      
      
        6) [Commercial Bank vs. Cunningham & Al., 24 Pick. 270. — Ed.]
     