Jessup v. Batterson , 5 Day 368 ( 1812 )

Baldwin, J.

This is an action of ejectment. The title of the plaintiffs, is derived from the levy of five executions, amounting to more than 660 dollars, on the land in question, which was appraised at 200 dollars. In setting off the same, by virtue of the several executions, the return of the officer, (after stating the amount of the execution, the levy, and the appraisal,) is iti these words, vfc. “ I do, therefore, by virtue of lilis execution, set off to the creditors, ¡in undivided right in the said land, <&c. at the sura of 03 dollars, -10 cents, in proportion as 200 dollars is to 208 dollars, 74 cents, in part payment,” &e. The same return is on all the executions, varying only as to the amount of the execution. The defendant objected to the admission of these returns, as evidence of title ; and because they were admitted, moved for a new trial: contending,

1. That the estate could not be thus set off to the several creditors, to hold, as tenants in common.

2. That the levy cannot be supported on the return of the officer.

As to the first objection, it is a general principle, that a levying creditor ought to take his estate in severalty, by metes and bounds, and not as a tenant in common; yet, there are, undoubtedly, cases, where it is incompatible with the nature of the property, to set out each part in severalty. This would be the case with a mill, and often with a dwelling-house. The propriety of the levy, as to this, must depend on the nature of the property, and the circumstances of the case. If no peculiar injury is designed or effected, there seems to be no imperious reason, why such levy should not be made. In thre case, there is no room for complaint. The whole property is taken, at the same time, by creditors, who choose to hold as tenants in common ; and as nothing is left in the debtor, neither he, nor any person under him, can have reason to complain. The whole property is insufficient, and the whole is taken from him.

In relation to the second objection, it must be admitted, that the form of the return is singular, and some of the expressions unintelligible ; yet enough appears to ascertain the proportions, and to make the levy good. The plaintiffs claim the whole, by virtue of five executions, levied at the same time, by the same officer, aided by one set of appraisers. The levy of each execution was over the whole estate, and the whole was appraised at 200 dollars. The amount of all the executions, and costs, was 664 dollars. As the property was insufficient to pay the whole, it was certainly ■■(innseicii for the creditors, to agree, that each should take in proportion to his claim, and to direct the officer accordingly. He evidently proceeded with this view ; and by comparing the whole amount of debt with (he appraised value, found, that each execution creditor would be entitled to the very sum set off to him. He then returned, that each execution was levied on the whole, and that he set off, on each execution, the precise sum. found as its proportion, to he held in common.

If he had proceeded no further, it would have been intelligible and sufficient; but he has added, “ in proportion as the sum in the execution bears to the value of the laud, via. 200 dollars.” This is manifestly a mistake, made by inserting the value of the land, instead of the amount of the debt levied, vis. 664 dollars ; or by taking the amount of the execution, instead of the amount set off. If the expression had been thus corrected, it would have only served to make more clear, that which was sufficiently manifest without it. If uncorrected, it is wholly unintelligible, and may be rejected as surplusage, and the return will still remain substantially good. »

I do not advise a new trial.

The other judges severally concurred.

New trial not to be granted.