McClure v. Melendy , 44 N.H. 469 ( 1860 )

Bell, C. J.

By the Revised Statutes (ch. 195) all real estate may be taken on execution, and shall be appraised and set off to the creditor at its just value, iu satisfaction of such execution, and the cost of levying, except in those cases where by law a sale of it is authorized. Sec. 1. The appraisers shall set off to the creditor, by metes and bounds, or other distinct description, the real estate appraised by them, or so much as may be necessary, in payment of the execution and cost of levying. See. 6. To this general rule the statute provides three exceptions :

1. If such real estate is held jointly, or in common with others, the levy shall be made upon the undivided interest of the debtor, or a part thereof. Sec. 7.

2. If such real estate can not, in the judgment of the appraisers, be divided and set out by metes and bounds, without greatly impairing the value of the whole, the levy may be made upon an undivided interest therein, or by such mode of division as the nature of the property will admit. Sec. 8.

8. If any debtor is seized of a rent, or of the income of any real estate, a levy may be made thereon, and the appraisers may set off the same for such term as they shall judge sufficient to pay the debt, interest and costs; and the sheriff shall cause the tenant to attorn and become tenant to the creditor; and upon his refusal shall turn him out of possession, and deliver seizin to the creditor, to hold for the term aforesaid. Sec 10.

Under these provisions we entertain no doubt that an estate for life in the rent or income of real estate may be set off by appraisal, where the whole is not sufficient, or is no more than sufficient to pay the execution and costs. If the whole rent for the creditor’s life should, in the judgment of the appraisers, be more than sufficient to satisfy the execution, it might be necessary to set off the property for such term as they judge sufficient. The levy in this case was made upon a part of the estate, and it may well be doubted if a levy upon a part of the land out of which a rent issues would be valid.

By the will of Mrs. McClure she gave “ to her husband the use. and occupancy of her real estate during his natural life.” If this devise gave him a life estate in the land, it was properly set off by appraisal. Upon this question we think no doubt can be entertained. It was a devise of the land, and not of any rent springing out of it, and not of the income of the land, as distinguished from the land. In terms it is a devise of the use and occupancy of the farm, which implies the exclusive control of it.

In addition to the cases cited by the defendant’s counsel, in support of the position that the words of this will pass the land itself, may be cited Nason v. Blaisdell, 17 Vt. 216, where it was held that a devise that the devisees may have, use and possess certain premises during their natural lives, gave an estate in the land. In Beardslee v. Beardslee, 5 Barb. 330, the testator devised : “ It is my will that my wife shall be master of my estate as long as she remains my widow it was held the wife took a life estate, subject to be defeated by her marriage. So the following words have been held to convey an estate in the land : The income of land ; Reed v. Reed, 9 Mass. 374; The income and interest of land; Blanchard v. Brooks, 12 Pick. 63; Use and improvement; Ellis v. Proprietors, &c., 2 Pick. 247 ; Fay v. Fay, 1 Cush. 98, 101; and many other eases cited there; and in Beekman v. Hudson, 20 Wend. 55; 2 Wash. R. P. 695.

No question arises in this case as to the validity of a levy by an appraisal of the ineomeand a set-off for such term as the appraisers judge sufficient to pay the debt. In Massachusetts it has been held that a levy in either mode is good. On this point we are not called on to give an opinion.

The levy in this case being valid, there must be

Judgment for the tenant.