The opinion of a majority of the Court, Siiepley J. remarking, that he dissented both from the reasoning and the result of the opinion of his associates, was drawn up by
Whitman C. J.
The claim of the plaintiffs arises under a levy upon real estate; and their title depends upon the va~ [101] lidity of it. Two several parcels of land appear to have been seized, and set off in satisfaction of an execution, obtained by the plaintiffs against one Potter; who, after the same had been attached on the original writ in the plaintiffs’ action against him, conveyed the same to one, who thereafter conveyed it to the defendant. One of the parcels of land consisted of a mill lot, of which one hundred and eighty-eight two hundred fiftieth parts were set off, with a right of way, over the other parcel, in common and undivided. The other parcel seems, by the boundaries, to have been contiguous to the mill lot, consisting of land and buildings, of which one hundred and thirty-nine six hundred and seventy-fifth parts, in common and undivided, were set off. It is understood, though the statement of facts does not expressly show it, that the present controversy is in reference to the latter ' parcel The defendant, as to this, contends, that the levy was void, as it was upon an undivided portion, when, as he contends, it should have been upon a distinct and severed part thereof by metes and bounds.
By the statute of 1821, ch. SO, <§> 29, executions might be levied “ on an undivided portion of any sawmill, gristmill or other mill, factory, mill privilege, or other real estate, which cannot be divided without prejudice to or spoiling the whole,” the whole not being necessary to satisfy any such execution. It is manifest, that the other real estate to be set off in common, in the clause above quoted, should be ejusdem generis with mills, &c. as to the impracticability of occupying it profitably, if set off in several parts. The appraisers, in reference to the levy in question, have certified, as to both parcels, that, in their judgment, they could not be “ divided by metes and bounds, without injury thereto.” And the officer who levied the execution, returns, that he had levied upon the undivided portions, “ It not being practicable to divide either parcel of said real estate without prejudice to the whole.” It is undoubtedly a part of the duty of officers, employed in the levying of executions, before proceeding to levy upon aa undivided portion of the estate of the debtor, to ascertain whether it presents a case, in which the setting off of a, portion of it, by metes and [102] bounds, will be prejudicial to, or spoil the whole. If he should persist in setting it off in severalty, when by so doing he would injure the whole, he might subject himself to an action, as for a misfeasance; and the like would be the case, if he should unreasonably persist in setting it off in undivided portions, when it could with propriety be set off in severalty. The officer in such cases must act af his peril. Must not his decision and return, so far as it affects the title, whether in one or the other of these cases, be deemed conclusive? And is there any other resource, in such cases, for the party feeling himself aggrieved, for his redress, than to an action of the case against the officer for a misfeasance ? Generally the truth of an officer’s return, in reference to duties enjoined upon him by law, cannot be controverted, except in an action against himself, or where strangers are concerned. The appraisers are to be freeholders. His return, that they were so, would be conclusive. Boston v. Tileston, 11 Mass. R. 468. Mr. C. J. Sewall, in Bott v. Burnel, ib. 163, says, in reference to a levy, “The sheriff’s return is conclusive as to the formal proceedings by the appraisers and himself;” and that “ The effect of these proceedings, between the creditor and debtor in the execution, is to be determined by the sheriff’s return, which is not to be supplied or contradicted;” and the same is the case, without doubt, with all such as claim in privity of estate under a debtor or creditor.
In what cases a setting off of real estate in severalty would be prejudicial, and to what degree it would be so, must necessarily be a question attended with difficulty, in many, if not in most of the cases which may occur. The law is silent upon the subject. In order to the validity of a levy upon a portion of an estate to be held in common, a decision as to its necessity or propriety must be made, in the first instance, by some one; and by whom shall it be made ? No one, but the officer, can make a return of the fact, that it will be prejudicial to do otherwise; and’this he must do as of his own.knowledge. He then must be the person to make the decision. Suppose he should err, it might be in some slight degree, and perhaps in [103] an instance in which but a majority of minds would judge differently, would the title be invalidated for such cause ? If not, how great must the error be to authorize a Court to adjudge the levy to be void ? It will certainly be difficult, as matter of law, to prescribe any limits for the guidance of an officer in such cases. In case of collusion between him and the creditor, and a manifest departure from the line of duty, might be evidence of it, especially if followed by indications of a disposition to oppress the debtor, in determining to levy upon an undivided portion, instead of a set-off of a part in severalty. It may be, that it should be allowable, for such cause, to question the title of a creditor. But so long as nothing of that kind appears, or can be presumed, it can scarcely be deemed reasonable, that the title of the creditor should be affected by a levy made under the circumstances attending the one in question.
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The opinion of a majority of the Court, Siiepley J. remarking, that he dissented both from the reasoning and the result of the opinion of his associates, was drawn up by
Whitman C. J.
The claim of the plaintiffs arises under a levy upon real estate; and their title depends upon the va~ [101] lidity of it. Two several parcels of land appear to have been seized, and set off in satisfaction of an execution, obtained by the plaintiffs against one Potter; who, after the same had been attached on the original writ in the plaintiffs’ action against him, conveyed the same to one, who thereafter conveyed it to the defendant. One of the parcels of land consisted of a mill lot, of which one hundred and eighty-eight two hundred fiftieth parts were set off, with a right of way, over the other parcel, in common and undivided. The other parcel seems, by the boundaries, to have been contiguous to the mill lot, consisting of land and buildings, of which one hundred and thirty-nine six hundred and seventy-fifth parts, in common and undivided, were set off. It is understood, though the statement of facts does not expressly show it, that the present controversy is in reference to the latter ' parcel The defendant, as to this, contends, that the levy was void, as it was upon an undivided portion, when, as he contends, it should have been upon a distinct and severed part thereof by metes and bounds.
By the statute of 1821, ch. SO, <§> 29, executions might be levied “ on an undivided portion of any sawmill, gristmill or other mill, factory, mill privilege, or other real estate, which cannot be divided without prejudice to or spoiling the whole,” the whole not being necessary to satisfy any such execution. It is manifest, that the other real estate to be set off in common, in the clause above quoted, should be ejusdem generis with mills, &c. as to the impracticability of occupying it profitably, if set off in several parts. The appraisers, in reference to the levy in question, have certified, as to both parcels, that, in their judgment, they could not be “ divided by metes and bounds, without injury thereto.” And the officer who levied the execution, returns, that he had levied upon the undivided portions, “ It not being practicable to divide either parcel of said real estate without prejudice to the whole.” It is undoubtedly a part of the duty of officers, employed in the levying of executions, before proceeding to levy upon aa undivided portion of the estate of the debtor, to ascertain whether it presents a case, in which the setting off of a, portion of it, by metes and [102] bounds, will be prejudicial to, or spoil the whole. If he should persist in setting it off in severalty, when by so doing he would injure the whole, he might subject himself to an action, as for a misfeasance; and the like would be the case, if he should unreasonably persist in setting it off in undivided portions, when it could with propriety be set off in severalty. The officer in such cases must act af his peril. Must not his decision and return, so far as it affects the title, whether in one or the other of these cases, be deemed conclusive? And is there any other resource, in such cases, for the party feeling himself aggrieved, for his redress, than to an action of the case against the officer for a misfeasance ? Generally the truth of an officer’s return, in reference to duties enjoined upon him by law, cannot be controverted, except in an action against himself, or where strangers are concerned. The appraisers are to be freeholders. His return, that they were so, would be conclusive. Boston v. Tileston, 11 Mass. R. 468. Mr. C. J. Sewall, in Bott v. Burnel, ib. 163, says, in reference to a levy, “The sheriff’s return is conclusive as to the formal proceedings by the appraisers and himself;” and that “ The effect of these proceedings, between the creditor and debtor in the execution, is to be determined by the sheriff’s return, which is not to be supplied or contradicted;” and the same is the case, without doubt, with all such as claim in privity of estate under a debtor or creditor.
In what cases a setting off of real estate in severalty would be prejudicial, and to what degree it would be so, must necessarily be a question attended with difficulty, in many, if not in most of the cases which may occur. The law is silent upon the subject. In order to the validity of a levy upon a portion of an estate to be held in common, a decision as to its necessity or propriety must be made, in the first instance, by some one; and by whom shall it be made ? No one, but the officer, can make a return of the fact, that it will be prejudicial to do otherwise; and’this he must do as of his own.knowledge. He then must be the person to make the decision. Suppose he should err, it might be in some slight degree, and perhaps in [103] an instance in which but a majority of minds would judge differently, would the title be invalidated for such cause ? If not, how great must the error be to authorize a Court to adjudge the levy to be void ? It will certainly be difficult, as matter of law, to prescribe any limits for the guidance of an officer in such cases. In case of collusion between him and the creditor, and a manifest departure from the line of duty, might be evidence of it, especially if followed by indications of a disposition to oppress the debtor, in determining to levy upon an undivided portion, instead of a set-off of a part in severalty. It may be, that it should be allowable, for such cause, to question the title of a creditor. But so long as nothing of that kind appears, or can be presumed, it can scarcely be deemed reasonable, that the title of the creditor should be affected by a levy made under the circumstances attending the one in question.
In this case the parlies have put it to the Court to determine, whether the levy is invalid for the cause assigned or not. If it be a question proper for us to decide, what are the data upon which we are to predicate a decision? We are referred to the adjudication of the appraisers, and to the return of the officer, who made the levy, for the facts. From these we gather, that the parcel of real estate in question consisted of land., the metes and bounds of which are given, and of buildings thereon, but of what kind does not appear. It adjoined the mill lot; and a right of way is reserved to run through it to that lot. This is the whole of the description. How can we determine that any portion of pt could have been advantageously set off in severalty ? To have set off the buildings, without the contiguous land, might have been ruinous to the value of each. The buildings, besides, may not have been susceptible of an advantageous division. It may be, that they consisted of a store and appurtenances, separate portions of which could not have been occupied by different individuals. In making partition of real estate it is often found, that very different allotments must be made, in order that the value of it may not be impaired. A valuable tavern stand or hotel, for instance, [104] in a process of partition, could not be allotted in separate portions to a number of individuals, without materially impairing the value of the whole. Hence provision is made by statute, in such cases, for such unequal allotments ; and for compensation in money by those having the larger allotments, to those to whom smaller portions are assigned. We cannot, therefore, be sure, if it were competent for us to make the inquiry, that the levy, in this instance, on an undivided portion, was not such as was called for by imperious necessity. The plaintiffs, therefore, must have judgment for possession of the demanded premises.