Pettee v. Peppard

Ames, J. It is well settled that a mortgaged estate may be levied upon and set off by metes and bounds in the same manner as if it were not so incumbered, provided the creditor is content to take it subject to the incumbrance. It is manifest that in this case the judgment creditor acted upon the assumption that the mortgage had been paid in effect and that he intended to contest its validity. No deduction was made from the appraised value of the estate on account of the existence of the mortgage, but the entire estate was appraised and set off at its full valuation towards the satisfaction of the execution. The existence of the mortgage would not prevent the debtor’s freehold estate and interest in the land from passing by the levy. White v. Bond, 16 Mass. 400. Mechanics Bank v. Williams, 17 [68] Pick. 438. Root v. Colton, 1 Met. 345. The fact that the creditor was mistaken in his assumption that the mortgage had been paid, and, therefore, failed in his attempt to contest its validity, would have no effect to defeat the levy on land not included in the mortgage. “ If one conveys by deed more land than he owns, the deed is good for what he does own. So if an execution be levied upon one hundred acres, and the debtor had a title but to fifty, the levy is good for the fifty.” Atkins v. Bean, 14 Mass. 404. Castle v. Palmer, 6 Allen, 401. Mechanics Bank v. Williams, 17 Pick. 438. Root v. Colton, 1 Met. 345. We cannot agree with the argument in behalf of the tenant that either § 33 or § 34 of the Gen. Sts. c. 103 makes it imperative upon the appraisers to deduct the mortgage debt, in any case where the creditor chooses to make the levy without such deduction. The fact that some of the parcels of land levied upon were mortgaged and some were not does not impair the validity of the levy, even if all were included in one appraisal. Hannum v. Tourtellott, 10 Allen, 494. Gen. Sts. c. 103, § 6. As to so much of the land levied upon as was not included in the mortgage, viz., the smaller lot, the demandant is entitled to judgment. Judgment affirmed.