Hitchcock v. Hotchkiss

Swift, Ch. J. The question is, whether the levy of an execution on land, and an appraisal as a fee-simple estate, [472] when the debtor had only an estate for life, will give such a title to the creditor that he can maintain ejectment. It has been insisted on for the defendant, that the estate or interest he had in the land has not been appraised ; and therefore the statute has not been pursued so as to vest a title in the plaintiff. The execution was levied on the land in the usual form : and the land was appraised as an estate in fee. The defendant had a freehold estate he had an interest in the land. By appraising the whole estate, all his interest in the land was appraised. That there was a mistake in the quantity of his interest, so that a greater interest was appraised than he owned, can constitute no objection to the levy of the execution ; for all the interest of the defendant was appraised, and the maxim well applied, that omne majus continet in se minus. If a less interest had been appraised, the objection would have been valid. Here the whole land was levied upon, and taken ; and this must comprehend any lesser interest, in the same manner as a deed of land as an estate in fee will comprehend any interest of the vendor in the land, however small. I am of opinion that we ought not to advise a new trial. In this opinion the other Judges severally concurred. New trial not to be granted.