Martin v. Collester

38 N.H. 455

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1859
• Status: Published

Opinion

Pbrley, C. J.

On the 22d of September, 1849, John Converse died intestate, seized of his homestead and two other tracts of land, leaving Gilman Converse and four other children, his heirs at law. Afterwards, on the same day, Daniel Reed attached the interest of Gilman Converse in all the land on ■ two writs, and, later in the same day, Nelson Converse and John Towns made separate attachments of the same. Pending these attachments one of the tracts of land and part of the homestead were assigned to the widow of John Converse, for dower.

Reed recovered judgment in one of his suits for $177.95, and in the other for $182.33 ; and within thirty days and on the same day levied the first execution on Gilman Converse’s undivided fifth part of that portion of the homestead which had not been set off for dower, at the appraised value of $194.81, in full satisfaction of that execution, and the second execution on the debtor’s undivided fifth part of the other tract, not set off for dower, at $78, and also on his undivided fifth of the reversion of the widow’s dower in both tracts, at $70, in part satisfaction of the second execution.

Nelson Converse afterwards levied his execution on twenty-two thirty-fifths of Gilman’s undivided fifth in all the lands, in full satisfaction, and Towns levied his execution on thirteen thirty-fifth parts of the same, in part satisfaction.

The demandant has the title derived under Reed’s levies, and the tenant has the title derived under the levies of Nelson Converse and John Towns.

If the levies made by Reed are held to be valid, they give the demandant the whole of the undivided fifth of Gilman Converse 'in all the land, and the tenant, if his title prevails, will hold exactly the same interest. In either case the other co-parceners will hold with the tenant or with the demandant as they would have held with Gilman Converse if he had retained his interest, and they will have the same remedy for partition in either case.

The legal objection to a levy on the undivided interest of a co-parcener in part of the land is not founded on any provision of the statute which authorizes the levy, but has been allowed upon the ground that such a levy is inconsistent with the rights of the other co-parceners. The objection is founded not on the form hut on the substance and effect of the levy, which deprives the other co-parcener of his right to partition in all the land. This is the ground upon which the decisions have been put in all the cases. Porter v. Hill, 10 Mass. 34; Bartlett v. Harlow, 12 Mass. 348; Varnum v. Abbot, 12 Mass. 474; Peabody v. Minot, 24 Pick. 333; Howe v. Blandin, 21 Vt. 315; Thompson v. Barker, 12 N. H. 563.

And where this reason does not apply, separate levies maybe made on the parcener’s undivided interest in different parts of the land; as, where the land lies in different counties, and separate processes for partition may be maintained ; and one levy may be made on land in possession, and another on land in reversion, for the same reason. Peabody v. Minot, qua supra.

So it would seem that, though the levy may be void at the time when it is made, yet if afterward titles become united, so that the other co-parceners hold with one owner in all the land, and can have partition as they could have had it with the debtor, the levyis valid, inasmuch as the co-parcener suffers no injury, and the debtor has no ground of complaint. Bartlett v. Harlow, 12 Mass. 354; Howe v. Blandin, 21 Vt. 315.

Need, by his levies made on the same day, took the same interest in all the lands that he would have taken if he had levied each of his executions on an undivided interest in all the land, and the demandant holds the same interest under that title. Neither the debtor nor the other cotenants are injured or can complain, and the objection to these levies cannot prevail.

It is said that the levies, being separate, the debtor might redeem one, and leave the title under the other to become absolute, and that this would divide the estates inconsistently with the rights of co-parceners. But the estate vests in the creditor, upon the levy, subject to the legal condition that it may be defeated by payment of the appraised value. The title is in the creditor till it is revested in the debtor by payment of the appraised value. The objection being made on account of the co-parceners, they cannot complain until there is a redemption. Whether the effect of redeeming part would be to defeat the whole title, it is not now necessary to inquire.