Starr v. Leavitt

Swift, Ch. J. The plaintiff and defendant both claim the land demanded, by the levy of executions upon it, as the estate of Simeon Mitchell; and questions arise respecting their validity. The defendant has levied upon pari of a piece of land, which Simeon owned as tenant in common with the heirs of David Mitchell; the same has been setoff to him by metes and hounds : and he lias taken the undivided moiety or right of Simeon to the part of the tract so described. This levy is void, according to the prim ¡pies adopted by tins Court, in the case of Hinman v. Leavenworth. Simeon had no such estate as an undivided moiety or share in a paid, of the tract he owned as tenant in common : he had an undivided share in the whole tract ; and the proper mode of levying the execution would have been, to spread it over the whole tract Itoidcn by Simeon as tenant in common, and to take such an undivided proportion, as would satisfy his debt. If the debt, had been sufficient to take the whole share of Simeon, then tin; levying credilor would have bren tenant in common with bis co-tenant : if not, then he would have been tenant in common with the others in unequal shares, and a partition of the whole would have been made. .But upon the present levy, partition must be made of part of the common right of Simeon with the other tenants ; which cannot by law be done. 'The plaintiff adopted the proper mode of levying his execution, but lie. has spread it over two distinct tracts of land hidden by Simeon, as tenant in common with the heirs of [247] David, by distinct titles, and has taken an undivided share of Simeon, in both pieces ; but has not taken the. whole of Simeon’s right in either piece. He should have taken the whole of Simeon’s right, in the tract on which he first levied, and then, if that had been insufficient to satisfy his execution, he might have levied on the other tract, and have taken sufficient to pay his debt. If the mode adopted by the plaintiff should be sanctioned, it would be in the power of a creditor to levy an execution upon any number of separate tracts of land, liolden by a debtor as tenant in common, by distinct titles, and with different co-tenants, and take an undivided share of each, so as to become tenant in common with them all. This would be productive of great and unnecessary expense, and might embarrass the title as well as the occupation of the lands, and ought not to be permitted. I am of opinion that the plaintiff is not entitled to recover. In this opinion the other Judges severally concurred, except Edmond and Gould, Js., who gave no opinion, the former being related to one of the parties, and the latter having been of counsel in the cause. Judgment to be given for the defendant.