Kimball, Jewett & Co. v. Smith , 21 Vt. 449 ( 1849 )

By the Court.

The objection, that this levy is not upon the land, but upon a mere abstraction, described as the debtor’s equity of redemption, if it is understood by the court, is certainly not sound. The levy is upon the debtor’s “ right in equity of redeeming certain premises,” described by metes and bounds. It certainly does not occur to us, how the estate of the debtor could be more intelligibly described. This, is, so far as we know, the usual mode of describing such property, when levied upon.

The objection, that the levy makes different creditors tenants in common in the equity of redemption, and, in case the debtor redeems the premises by paying the debt to the mortgagee, that he, also, will become a tenant in common with them, is an objection, also, that applies to all levies upon the equity of redemption in mortgaged premises, where more than one creditor levies upon the same equity. It cannot be otherwise. A levy upon a portion of the equity, by metes and bounds, is invalid, as has often been held by this court; and when different creditors levy, it must be as tenants in common.

All that is peculiar in the case is, that only a portion of each execution is levied. But we see no objection to this, if the creditors so choose; but if levied upon land in fee, the levy of each execution must be upon a separate portion of land; by metes and bounds, as was held in this case at the last term. But here it could only be done in this mode; and if the creditors choose so to divide the estate between them, we see no objection.

Judgment affirmed.