Hyde v. Barney

The opinion of the court was delivered by Williams, Ch. J. The questions which are involved in this case have been mostly decided, either in this or the neighboring [283] states. A ne(w investigation, or a re-examination, of the cases which have been decided, is not called for. The decisions in the New England States, on the subject of the levy of executions on real estate, and the rights and interests of heirs, are entitled to a respectful consideration, inasmuch as our institutions are similar to theirs, and our laws, particularly on these subjects, are in many instances nearly copied from theirs. That the heir of an intestate has, immediately on the death of the ancestor, a vested interest in his estate, which may be conveyed by deed, is not questioned. If the heir be a feme covert, that her husband has an interest in the real estate, as tenant by the curtesy, which may be taken for his debts, was decided in the case of Mattocks v. Stearns et ux., 9 Vt. 326. Procter v. Newhall, 17 Mass. 81, and recognized in Griswold v. Penniman et al., 2 Conn. 564. That such estate may be attached immediately on the death of the ancestor, before any distribution, or any action of the probate court, and may be levied on by execution, was expressly decided in the before mentioned case of Procter v. Newhall, 17 Mass, 81. Indeed the latter case may be said to run quatuor pedibus and to be identical with the present case, so far as it respects the right of the creditor to attach, and the interest which he derives by the levy of an execution. The objections which are made to this view of the subject are altogether imaginary. It neither prevents or retards the actiofi of the probate court in making a division. The creditor is substituted in place of the husband of the heiress; and if no objection is made to the distribution, or division, either by the husband or the creditor, neither the rights of the husband or of the other heirs are affected. The life estate of the husband is to be appraised, and there is always some uncertainty in estimating the value of a life estate; but the advantage arising from this uncertainty is wholly with the debtor. He can redeem, if the appraisal is too low; if too high, the creditor runs the risk. Objections are then taken to the levy, as irregular and void. One, that the levy is not made by metes and bounds, but by reference to other deeds. This objection was taken to a levy in the case of Boylston v. Carver, 11 Mass. 515, and it was held that in a [284] return a reference to deeds upon record was a sufficient description of the lands levied on. Without the authority of that case, I might have entertained some doubts on this point. Another objection is, that the officer has not stated the amount of the interest of the heir, — whether one seventh, or more. This^ at most, is a mere matter of form. He states that he has levied on the undivided share belonging to the wife; and it is not to be presumed that this was not known to, and ascertained by, the appraisers and officer; — and moreover the debtor has the same advantage here, as before mentioned ; if too little was taken and the appraisal too high, the debtor has the advantage, if too much, he could redeem. But there is another and conclusive answer to all these objections. The estate of the judgment debtor was liable to be taken in execution and levied on. If there was a defect in the return, or any irregularity, or informality, or if the levy was not1 made according to the strict rules of law, so that the title derived from the levy should be- deemed doubtful, or uncertain, that defect was cured by the act of 1837, entitled “ An Act relating to the levy of executions,” as well as by the act of 1835 on the same subject; and the levy was made good and valid to convey the interest of the judgment debtor, inasmuch as neither party moved or petitioned the supreme court to vacate the levy within two years from and after the framing of the several acts aforesaid. Tfie deed from Towner and wife to the defendant, under which she claims title, was not executed until the 7th of May, 1840, — previous to which all the defects in the levy were cured by the lapse of time. The judgment of the county court is therefore affirmed.