Wadsworth v. Williams

97 Mass. 339

Opinion

Hoar, J.

*

There are two objections taken by the tenant to the validity of the levy under which the demandant claims, neither of which seems to us sufficient to defeat it.

1. The levy was made upon" land, the record title of which stood in the name of Susannah Williams, but which was taken as the property of Avira Williams, upon the ground that the conveyance by him to Susannah Williams was fraudulent as to his creditors. After the land was taken on the execution, the completion of the levy was suspended on account of a prior attachment in favor of one Hapgood against Susannah and Avira Williams. This attachment was a general one of the real estate of Susannah and Avira Williams; but not a special attachment of any real estate of Avira, of which the title stood in the name of Susannah, under the provisions of Gen. Sts. c. 123 § 55. The tenant contends that this was not such a prior attachment as justified the suspension of the levy; but there seems to be no good reason for such an opinion. The practice of suspending proceedings under a levy on account of prior attachments appears to have been first authorized, or recognized as a lawful practice, by Rev. Sts. c. 97, § 34. Report of Commissioners on Rev. Sts., note to c. 97, §§ 32, 33. Gen. Sts. c. 133, § 50. The statute does not define what attachments shall be sufficient to justify the officer making the levy for suspending it; but must be understood to refer to any attachment which might impair or defeat the effect of the levy. The land being equally liable to a joint creditor of Susannah and Avira Williams, whether the record title was in one or the other, such a creditor might have no interest to question the legality of the conveyance from Avira to Susannah ; and his attachment of it as the property of Susannah, in satisfaction of a debt due from Avira also, might perhaps have been valid as against a separate creditor of Avira. But however that might be, it was an attachment of the same land, and raised a question of title sufficient to warrant the officer in waiting to complete his levy until it should be determined.

2. The land upon which the levy was made being subject to a mortgage which included other land, the appraisers deducted from the value of the land taken a proportionate part of the amount of the mortgage. This does not make the levy invalid. In Brown v. Worcester Bank, 8 Met. 47, the court intimated an opinion that this was the proper course to pursue; and it certainly seems to be equitable and just to both parties. Indeed, in no other way could a levy be made upon land mortgaged, where the value of the equity of redemption exceeded the amount of the execution to be levied; unless by wholly disregarding the mortgage in the appraisement, which would be prejudicial to the creditor. To the suggestion that the statute requires the whole mortgage debt to be deducted, the answer is twofold : first, that it would require more land to be set off to satisfy the execution, and might be prejudicial to the debtor, in case other interests were concerned in the other part of the land subject to the mortgage; and secondly, that deducting less thanQ the amount which might have been deducted from the value of the land taken cannot be injurious to the debtor.

New trial granted.

This, and the following Worcester cases, except as otherwise specified in notes to them, were argued at Boston in December 1867, and January 1868 before Hoar, Chapman, Gray, and Foster, JJ.