Root v. Colton

Dewey, J.

The objection taken to the validity of the levy of the execution in favor of Eunice Brooks, under whom the tenant derives title, is, as it seems to us, an insuperable one. The judgment creditor must at his peril, in making his levy upon the real estate of the debtor, cause to be appraised as great an interest as the debtor has in the premises levied on. He may indeed treat an incumbered estate as though the same were held by the debtor by an indefeasible title, making no deduction for such incumbrance ; and in such case he will acquire a legal title to the extent of the debtor’s interest, whatever that may be. Mechanics' Bank v. Williams, 17 Pick. 438. Such a levy could not operate prejudicially to the interest of the debtor. To obviate all uncertainty as to the extent of the interest thus seized and appraised, the Rev. Sts. c. 73, §8 require that “in estimating the value of the estate of the debtor, the appraise rs shall always value it as an estate in fee simple in possession, unless it is expressly stated in the description, indorsed on the execution, to be a less estate.” The present return does, in this respect, fully comply with the requirements of the statute The difficulty here is not the want of formality in the return, but it arises from the fact that the real interest of the debtor in the land was not correctly described in the levy, and that the property was not in fact subject to any such incumbrance as was supposed to exist, and on account of which a deduction to a considerable amount was made from the value of the premises levied upon. The estate of the debtor was appraised subject to the incumbrance of a life estate in one Sarah Smith in one half of the same. But there was no such incumbrance existing, the judgment debtor having previously acquired the interest of Sarah Smith in the premises, by a conveyance from her. Such being the state of the property, and of the defendant’s interest in the same, it was not competent for a judgment creditor to have the same set off and appraised subject to the incumbrance of a life estate in Sarah Smith ; as the effect would be to transfer to the creditor a greater interest than was estimated by the appraisers, leaving the debtor to sustain an injury to the entire amount deducted by the appraisers for the supposed incumbrance. The levy must for this cause be held invalid, or manifest injustice would be done to the debtor who should thus be deprived of the benefit of an appraisement of his true interest in the premises levied upon.

But it is contended by the tenant, that the levy ought not in the present case to be avoided by reason of the erroneous deductions for a supposed incumbrance, inasmuch as there was, in relation to a part of the land set off on his execution, a want of title in the debtor, even to the extent it was estimated in the appraisement and description in the return; so that the whole estate actually acquired by the creditor under the levy was less valuable than that appraised, and so no injustice has been done to the judgment debtor. We do not think this view of the case, though apparently an equitable one, can be sustained by us when required to settle the legal rights of the parties. The return of the levy and appraisement shows that from the whole estate in the land seized there was a deduction for a supposed incumbrance. The facts proved in the case show that as to eight acres of the land appraised, the debtor had a title in fee simple, and that no part of the estate levied upon was under any such incumbrance as is described in the return and on account of which a deduction was made from the value of the debtor’s interest in the premises set off. This deduction, having been made for an incumbrance not in fact existing, was illegally made, and must necessarily vitiate the levy and subject the premises to be seized by any other creditor of the judgment debtor. The demandants, having duly levied their execution on the same, are therefore entitled to recover the premises demanded in the present action.

Tenant defaulted.