The opinion of the Court was delivered at a subsequent term by
Mellen C. J.
In this case several questions have been presented for our consideration, and we will consider them in their natural order. The premises, the rents of which are demanded of the defendant, were once the property of Thomas Beck; and the first question is, what was the nature of the estate devised by him to his daughter Mary, the present wife of James Chadbourne. It is admitted it was a fee simple, created by apt words and those usually employed for the purpose, and by no others. But it is urged that the testator intended the estate to be for the separate and exclusive use and benefit of the devisee and her heirs, and that it should not be in any manner under the control of the husband or liable for his debts. It is not necessary for us to decide whether the parol evidence, admitted sub modo, and relied on by the counsel for the defendant, is admissible, according to the authorities cited, in this action at law, to prove the alleged intention ; for if admissible, [105] it could not produce .the intended effect. It is altogether of a vague and uncertain character, and wholly insufficient to control the unequivocal and direct language of the devise. As tho usual language was employed to create a fee, we must presume that if the testator intended an estate of the character suggested by the defendant’s counsel, he would have used expressions of his own, such as he might have deemed proper for the purpose ; but not having so done, he must be considered as knowing the rights which by law belong to a husband, in respect to real estate given by will or conveyed to her by deed in fee, and not to have designed to impair them. We are therefore of opinion that the estate or right which Chadbourne, the husband, had in the premises devised to his wife in fee, was liable to be seised and taken on execution for the debts of Chadbourne.
The next question is, whether Chadbourne's interest in the premises was transferred to the defendant by the deed of March 12, 1830, or to John Ulrich by the levy of his execution against Chadbourne, made on the 12th of April, 1831. The deed being made before the levy, if not impeachable and impeached by the plaintiff, who purchased Ulrich's interest or estate acquired by the levy, on the 28th of May, 1831, operated to pass the estate of Chadbourne to the defendant. Our inquiry then is, whether, on the facts before us, the deed is effectually impeached as a voluntary conveyance, and so void and wholly inoperative, as against the creditors of Chadbourne. It appears that Ulrich was such a creditor, whose demand had existed for several years prior to the levy; of course his grantee is authorised to contest the validity and effect of the deed and impeach it as a voluntary conveyance and void. But it can be of no use to him to impeach the deed, unless the levy under which he claims, is a legal one. Its legality is denied on several grounds. It is a well settled principle that whatever is necessary to constitute a legal levy of an execution, must appear on the return of the officer making the levy. Williams v. Amory, 14 Mass. 20.
The first objection to the levy is, that it appears by the certificate of the magistrate who administered the oath to the appraisers, that they were only sworn to appraise such estate as should be shown to them to satisfy the execution; but not fees [106] and charges. This objection has no foundation, for the officer in his return says they were sworn to appraise all such estate as should be shown to them to satisfy the execution and all fees and charges.
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The opinion of the Court was delivered at a subsequent term by
Mellen C. J.
In this case several questions have been presented for our consideration, and we will consider them in their natural order. The premises, the rents of which are demanded of the defendant, were once the property of Thomas Beck; and the first question is, what was the nature of the estate devised by him to his daughter Mary, the present wife of James Chadbourne. It is admitted it was a fee simple, created by apt words and those usually employed for the purpose, and by no others. But it is urged that the testator intended the estate to be for the separate and exclusive use and benefit of the devisee and her heirs, and that it should not be in any manner under the control of the husband or liable for his debts. It is not necessary for us to decide whether the parol evidence, admitted sub modo, and relied on by the counsel for the defendant, is admissible, according to the authorities cited, in this action at law, to prove the alleged intention ; for if admissible, [105] it could not produce .the intended effect. It is altogether of a vague and uncertain character, and wholly insufficient to control the unequivocal and direct language of the devise. As tho usual language was employed to create a fee, we must presume that if the testator intended an estate of the character suggested by the defendant’s counsel, he would have used expressions of his own, such as he might have deemed proper for the purpose ; but not having so done, he must be considered as knowing the rights which by law belong to a husband, in respect to real estate given by will or conveyed to her by deed in fee, and not to have designed to impair them. We are therefore of opinion that the estate or right which Chadbourne, the husband, had in the premises devised to his wife in fee, was liable to be seised and taken on execution for the debts of Chadbourne.
The next question is, whether Chadbourne's interest in the premises was transferred to the defendant by the deed of March 12, 1830, or to John Ulrich by the levy of his execution against Chadbourne, made on the 12th of April, 1831. The deed being made before the levy, if not impeachable and impeached by the plaintiff, who purchased Ulrich's interest or estate acquired by the levy, on the 28th of May, 1831, operated to pass the estate of Chadbourne to the defendant. Our inquiry then is, whether, on the facts before us, the deed is effectually impeached as a voluntary conveyance, and so void and wholly inoperative, as against the creditors of Chadbourne. It appears that Ulrich was such a creditor, whose demand had existed for several years prior to the levy; of course his grantee is authorised to contest the validity and effect of the deed and impeach it as a voluntary conveyance and void. But it can be of no use to him to impeach the deed, unless the levy under which he claims, is a legal one. Its legality is denied on several grounds. It is a well settled principle that whatever is necessary to constitute a legal levy of an execution, must appear on the return of the officer making the levy. Williams v. Amory, 14 Mass. 20.
The first objection to the levy is, that it appears by the certificate of the magistrate who administered the oath to the appraisers, that they were only sworn to appraise such estate as should be shown to them to satisfy the execution; but not fees [106] and charges. This objection has no foundation, for the officer in his return says they were sworn to appraise all such estate as should be shown to them to satisfy the execution and all fees and charges.
The second objection is, that no reason is assigned in the return why the levy was not by metes and hounds ; and that in the absence of such reason, the levy must have, been in the above manner. The 27th sec. of ch. 60, of the revised statutes, prescribes the mode of extending executions on the real estate of a debtor; it is to be appraised and set off by metes and hounds; and the 28th section provides that where the- nature of the estate is such that it cannot be so appraised and set off, the execution shall be levied upon the rents and profits of the estate. This is the only provision relating to the subject. The interest which a husband has in an estate of inheritance or of freehold belonging to his wife, is real estate, and falls within the provision of the 27th section; why then should not the execution have been levied upon the estate in usual form by metes and bounds, or some reason have been assigned to shew, on the face of the return, that it could not have been so levied ■? If the case before us is an. exception from the general provision, why should not the return state it to be such, as well as any other fact essential to the correctness of the levy ? Williams v. Amory, above cited; Eddy v. Knapp, 2 Mass. 154 ; Tate al. v. Anderson, 9 Mass. 92 ; Whitman v. Tyler, 8 Mass. 284. In the case of Barber v. Root, 10 Mass. 26, Barber’s wife was owner in fee of certain real estate, and execution against him was levied on the rents and profits of the estate, and the levy was decided to be good. Sewall J. in giving the opinion of the Court says, “ For myself I am satis- “ tied upon this point. The interest which the husband has “ in the real estate of his wife, that is, in any lands or tene- “ ments in which she has an estate of freehold, whether of in- “ heritance or for life, is a title to the rents and profits during “the coverture.” In Chapman v. Gray, 15 Mass. 486, the wife was tenant for life, and execution against the husband was levied on- the land and buildings in common form and seisin delivered ; and this the Court considered as a proceeding ac[107] cording to law. In Roberts v. Chapman, 16 Mass. 186, the debtor was tenant by the, curtesy, and the execution was levied in common form on the land as his freehold. The Court said the levy was correct; and that they were of opinion that the execution in the case of Barber and Root might have been levied either way ; on the land or on the rents and profits. The above case of Barber v. Root, is precisely like the present, in respect to the nature of the wife's estate and the mode of levying the execution. In the case of Chapman v. Gray, the wife was only tenant for life; and in Roberts v. Chapman, the debtor himself was tenant by the curtesy; but, in both instances, the property levied upon was the real estate of the debtor; and so was comprehended in the language of the twenty-seventh section, which is a transcript of the provision in the Commonwealth of Massachusetts on the same subject. From this view of the practice in Massachusetts, and of the construction given to the section by the Supreme Court there in several instances, it would seem that the levy in the case before us would be good and valid. Had there been no construction ever given in that State prior to our separation from it, we should hesitate before pronouncing the levy on Chadbourne’s estate or interest to be in conformity to the 27th and 28th sections of our statute, and sufficient in law. Rut we have frequently decided that where a statute-of Massachusetts had received a judicial construction by the Supreme Court of that State prior to our separation, and the same statute- had been reenacted in this State, this ought to be considered as a legislative adoption of such construction. We are therefore disposed also to adopt it, and accordingly our opinion is, that the levy must be considered as legally made, notwithstanding this objection, and as having transferred all the right or estate which Chadbourne had to and in the property levied upon, unless the same had previously passed by his deed to the defendant. The next objection is, that the levy is void in consequence of certain illegal or unauthorised fees and expenses charged by the officer in making it, which have been allowed and satisfied out of the property of Chadbourne,: and to support this objection the case of Beach v. Walker, 6 Con. R. 190, has been cited. [108] That case was tried before the Chief Justice, who decided that, the illegal charges made by the officer rendered the levy void. The correctness of this decision was reserved for the consideration of the whole Court. It was argued in June term, 1826 : but in May preceding, the Legislature passed a confirmatory act, which the Chief Justice, and one of the Justices, (being a majority of the Court sitting in the cause,) considered as constitutional and as healing the defect in the title ; and the verdict was set aside. In Booth v. Booth, 7 Con. R. 350, one of the objections to the levy was of the same kind as was made in the last case. Bagget J. considered that, if it was a good one, it was done away by the healing act; and as to the other objections, he was of opinion that they did not defeat tho levy, and a majority of the Court concurred: but the Chief Justice and one -of the Justices thought the return bad on other grounds. In Huntington v. Winchell, 8 Con. Rep. 45, two executions were levied on lands, the value of which, as appraised, exceeded the amount of the executions ; in one case, eleven cents; in the other, seven cents. Both- levies were held good. In all these cases we have the opinion of the Chief Justice only, as to the correctness of his opinion delivered at the trial on the point in question. We cannot feel satisfied as to the correctness of that decision, notwithstanding the high character and acknowledged learning of the Judge who pronounced it. The debtor, Chadbourne, has paid, it is said, more than the officer had a right to charge as fees and expenses, and has thus been injured to a certain amount: admit such to be the fact; the law gives him a remedy by an action of assumpsit to recover it back again of the officer; and this will do justice to Chadbourne; but if a levy is to be pronounced totally void for such a reason, an actual loss to the execution creditor, to the amount of thousands, may be the consequence, on account of a surplus, unauthorised charge and satisfaction of one dollar. Why should the innocent creditor be thus compelled to bear the consequences of an act unlawful on the part of the officer. In a case of this kind the Court may look forward to the consequences of such a decision as might probably go to the disturbance or destruction of hundreds of titles which have never [109] before been questioned. On the whole, we do not feel authorised to declare the levy void for the reason which has been urged. Our only remaining inquiry is, whether an estate passed to the defendant by Chadbourne’s deed. The only considr eration expressed in the deed is one dollar, and there is no proof that even that has been paid ; and yet Chadbourne’s interest in the property in question was appraised at $240 per annum. On these facts we cannot sanction the deed as a valid one; it was nothing more than a voluntary conveyance without any consideration, Chadbourne being insolvent at the time, and therefore ineffectual and void as against Ulrick, and Sturdivant his grantee, according to the case of How v. Ward, 4 Greenl. 208, and the cases there cited. We are of opinion that the defence hasjtotally failed ; and according to the agreement of the parties there must be,
Judgment for Plaintiff.