Jenks v. Ward , 45 Mass. 404 ( 1842 )

Wilde, J.

This case depends on the validity of the tenants’ title, which is derived from the levy of an execution upon the demanded premises, against Turner & Baffin, the former owners, it being admitted that if this levy was made according to law, the tenants have the elder and better title.

The first objection to the levy is, that the description of the land taken is not sufficient, it being by reference to certain deeds, which were on record, and not to metes and bounds. The statute does not require that land levied upon should be described in every case by metes and bounds. The provision is, that it “ shall be described by metes and bounds, or otherwise, with as much precision as is necessary or proper in any common conveyance of land, and in such manner that the premises may be known and identified.” Rev. Sts. c. 73, § 5. In Boylston v. Carver, 11 Mass. 515, it was decided that the description of land levied upon, by reference <£ to deeds of the same land upon record,” was a sufficient description : And we can have no doubt of the correctness of that decision. Whether it appeared from the levy itself, in that case, and in Galusha v. Sinclear, that the deeds referred to were on record, is not certain from the reports.^* But we are of opinion, that if it did so appear, yet there is no distinction between that case and this In the case at bar, reference was made, in the levy, to deeds that were in fact on record, and the principle of the decision is the same in this case as in that, viz. that is certain, which can be made so.

The second objection is, that the appraisers deducted from the appraised value of the premises a certain sum for the incumbrance of the rights of dower of the wives of the judgment debtors without mentioning such deduction in the certificate of appraise ment. This objection also does not appear to be weil founded The appraisers had a right to make such deduction ; an inchoate right of dower being an incumbrance, as was decided in Shearer v. Ranger, 22 Pick. 447. And the omission to certify the deduction is not such a defect in the proceedings as would vitiate the extent. The defect, if it be one, is merely formal; and parol evidence is not admissible to impeach the certificate of the appraisers, or the return of the officer, when in fact the appraisement was fairly made.

Another objection to the levy relates to the deduction of an incumbrance, by mortgage, on a small proportion of the land taken on execution, and which included other lands of great value. The objection is, that only a portion of the amount due on this mortgage ought to have been deducted. But we think the whole amount was rightly deducted, because Turner was bound to pay off this mortgage, and consequently he could have no right to claim contribution from the owner of the other lands mortgaged. It is said that the portion of the premises included in the mortgage ought not to have been taken on execution, because the amount due on the mortgage much exceeded the estimated and real value of that portion of the premises, and consequently there was no necessity of including that portion in the levy. But whether there were any such necessity or not, we think the judgment creditor had a right to take this portion of the debtor’s property, as well as his other property — whatever may have been his title or the incumbrance. But it appears that there was evidence, that the whole fifty acres were conveyed by Estes to Turner, on condition that Turner should pay the said mortgage.

It was argued by the demandant’s counsel, that this was not such an incumbrance as would justify a deduction from the estimated value of the land. We think, however, very clearly, that there is no foundation for this objection. It is true, the conveyance was not a mortgage ; but the condition to be performed by the grantee, for the non-performance of which the estate would be forfeited, was most certainly an incumbrance. And the land was liable to be taken on execution; for it was the land of the judgment debtor, Turner, subject to the mortgage, in part, and the other part was liable to be defeated only by the non-performance of' the condition.

As to the computation of interest, we think no more was computed than Turner was liable to pay. The payment, made at the request of the assignees of Turner and Laflin, was gratuitous, and not at the request or with the consent of either Turner or Laflin.

Upon the whole matter, therefore, we are of opinion that the evidence reported would authorize a verdict for the tenants; and according to the agreement of the parties, a new trial is granted

* It is found, on inspection of the record, in the case of Boylston v. Carver, that the levy, on which the demandant relied, did describe the land as “ butted and bounded as is specially described in a deed from Jonathan Bullard to Moses Gill, dated October 31, 1787, and recorded in Middlesex records, Boob 96, p. 622, as by reference thereto will appear.”