Davis v. Barnard , 60 N.H. 550 ( 1881 )

One tenant cannot convey a part of the held in common with another, by metes and bounds, to a stranger. If he could, his grantee would become tenant in common of a particular part with the other tenant, who, in making a legal partition, might, notwithstanding the conveyance, have the whole of the part thus conveyed assigned as his property. Porter v. Hill, 9 Mass. 34. For the same reason an execution against one holding land as a tenant in common cannot be extended on a part of the land so holden by metes and bounds. French v. Lund, 1 N.H. 42; Thompson v. Barber, 12 N.H. 563; Smith v. Knight,20 N.H. 9; Hall v. Young, 37 N.H. 134; Carter v. Beals, 44 N.H. 413. But where on an execution against a mortgagor a levy is made on the whole estate, disregarding the incumbrance, it will be good against the mortgagor if the creditor so elects. Kelly v. Burnham, 9 N.H. 20; Hovey v. Bartlett,34 N.H. 278. The land being appraised at its full value without deduction on account of the mortgage, the debtor cannot complain, as he has the full value of the land applied to the extinguishment of his debt. So where the appraisers, in the levy of an execution, certified the value of three eighteenth parts of the land, and it appeared by the return that the whole land was set off, the levy was held to pass the interest of the debtor, it being the same that was appraised, if the creditor should so elect. Smith v. Knight, 20 N.H. 9; Coos Bank v. Brooks, 2 N.H. 148, Bartlet v. Harlow, 12 Mass. 348, 354; Atkins v. Bean, 14 Mass. 404.

The defendant levied his execution upon the whole estate, one moiety of which belonged to the plaintiff and the other to the judgment debtor. According to all the authorities, the levy was good against John K. Davis; and although the return shows that the whole tract was levied upon, in fact his moiety and that alone passed to the creditor by virtue of the levy. The levy did not affect the plaintiff's title to the other half of the premises. She was not a party to the levy, and is not bound by anything that was done affecting her interest. She remains seized of an undivided half, and the defendant became seized of the other half as tenant in common with her. Upon petition by either for partition, there will be nothing in the levy to prevent judgment that partition be made. The defendant claims to hold only the moiety that belonged to John K. Davis, and makes no claim to the moiety belonging to the plaintiff. As the levy can have no effect upon the plaintiff's rights, when partition is made it must be made regardless of the levy. The plaintiff is entitled to a decree that the defendant release to her one undivided half of the whole tract.

Case discharged.

STANLEY, J., did not sit: the others concurred.