Brown v. Bailey

Shaw, C. J.

The question is upon the validity of the title acquired by the demandant by his attachment, and the levy of his execution upon the premises, as the estate of Matthew S. Chapell. The estate of Chapell was derived under the will of his father, Richard Chapell, giving him an equal share, being one fifth part, of his real estate, “to be taken where he shall choose or select, at its just or proportionable value.” These words do not constitute a condition precedent to the vesting of the estate, but a right or privilege superadded to the devise, to be exercised or not, at the will of the devisee, upon partition. Consequently Matthew became entitled as tenant in common, under the devise, upon the decease of his father. Immediately after the decease of the devisor, and before the intervention of any other title or claim, this estate was attached by the demand-ant, and, if followed up by a valid levy, constituted a good title, eldest in time, and therefore prior in right.

The objection to the demandant’s levy is, that it was a levy on a specific portion of the devised estate, by metes and bounds; whereas k should have been levied upon the debtor’s undivided share in whole or in part. This would undoubtedly have been a valid and fatal objection, had it been made by any of the co-tenants before partition, because it would be an encroachment upon, their right to have partition of the whole tenement. Porter v. Hill, 9 Mass. 34. Bartlet v. Harlow, 12 Mass. 348. French v. Lund, 1 N. Hamp. 42. But as this rule is adopted for the protection of the rights of the other cotenants, it shall not be extended further than the accomplishment of that object requires ; and it is therefore held, that a conveyance of part by metes and bounds, by a cotenant, is not void, but voidable only by the other cotenants. And the same rule applies to a levy on part by metes and bounds, as the estate of a tenant in common, which is in the nature of a statute conveyance. Varnum v. Abbot, 12 Mass. 474. Nichols v. Smith, 22 Pick. 316. Such conveyance or levy, therefore, is good against the grantor and all claiming under him. If then the other cotenants release, or if upon a partition, their full shares are set off in other parts of the common estate, and the part conveyed or levied on is assigned to the party whose share has thus been conveyed or levied on by metes and bounds, such partition operates by way of estoppel and release, because no one has any longer a right to contest its validity. Bartlet v. Harlow, 12 Mass. 354. That is precisely the present case. After the levy, a partition was made, in which the premises levied upon by the demandant were assigned to his debtor, Matthew S. Chapell. This was done by the full consent of the latter, by which the right of choice, given to him by the will, was' fully secured to him, and exercised by him.

The case then shows that the estate in common vested in the debtor on the decease of the devisor, and was first well attached by the demandant, as his creditor ; that the levy, made in pursuance of the attachment, was voidable only by the other co-tenants ; that it was never in fact avoided by them, but on the contrary, by the partition, their claims were fully satisfied out of other parts of the estate, and from and after such partition, they were precluded from avoiding or contesting the demandant’s tide ; and that this title relates back to the attachment, and supersedes all subsequent conveyances and attachments, and is therefore valid and indefeasible.

Judgment for the demandant.