Pickering v. Reynolds

111 Mass. 83

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1872
• Status: Published

Opinion

Ames, J.

The officer’s return shows no sufficient legal reason for levying the execution upon an undivided portion of the debt- or’s real estate. It is only in the case of an estate which cannot be divided without damage to the whole, and which is more than sufficient to satisfy the execution, that the levy can be made upon an undivided portion of the whole, to be determined by the appraisers. Gen. Sts. c. 103, § 10. The return wholly fails to show the existence of Such a state of things, and the levy is therefore invalid. “ In the transfer of title to real estate by virtue of a statute power, the requisitions of law must be strictly complied with.” Chenery v, Stevens, 97 Mass. 77, 84.

The question whether the cause should be continued, to enable the officer to amend the return, was within the judicial discretion of the judge presiding at the trial, and his decision upon it is not subject to exception. Reynard v. Brecknell, 4 Pick. 302. Monk v. Beal, 2 Allen, 585. Payson v. Macomber, 3 Allen, 69.

Exceptions overruled.