Sleeper v. Trustees of Newbury Seminary

The opinion of the court was delivered by Hall, J. The only question in the case is, whether the levy of the execution upon an undivided portion of the land is valid to pass the estate 1 It appears from the returns, that the debtor was the owner in fee of the whole of the house, shed and land levied upon. In such case the statute contemplates [Rev. St. chap. 42, § 20] that the officer shall, in general, se.t off the land levied upon by metes and bounds, and not an undivided portion of it. But the legislature suppose, that cases may occur, in which a setting off by metes and bounds would prove greatly injurious to the interest of the parties; and in the 30th section of the same chapter it is provided, that when, in the opinion of the appraisers, any real estate cannot be divided without such great injury, the officer may set off such an undivided part [453] thereof, as shall be sufficient to satisfy the execution. Whether the appraisers were of such opinion in this case does not appear. This proceeding, by which the estate of one man is passed to an- • other by the operation of law, has always been considered a proceeding stricti juris, and hence it has uniformly been held in this state, as well as in others having similar statutes, that all the material facts, necessary to show that the law has been complied with, should appear by the officer’s return. It is obvious, that, in most cases, an ownership of real estate in common is not desirable, and that, if a creditor were allowed, as matter of right, at his election, to levy upon an undivided interest of land held in severalty, he might make use of his execution greatly to the vexation and injury of the debtor. For this reason the legislature have provided, that such a levy shall not be made, but for good reasons, to be adjudged and determined by the appraisers. This adjudication is a distinct and substantial requirement of the statute, important to the protection of the interest of the debtor, and should not be allowed to rest in parol, but should, as we think, appear, by the officer’s return, to have been duly made. Such adjudication not appearing by the return, the judgment of the county court, which was against the validity of the levy, is affirmed,