The opinion of the Court was by
Shepley J.When thé debtor is sole seized of real estate; which can be divided without injury to or spoiling the whole, it must be levied upon by metes and bounds agreeably to the provisions of the stat. c. 60, § 27. Nor is it every estate, the value of which may in some measure be diminished by such a levy, that falls within the provisions of the twenty-ninth section. The words “ other real estate which cannot be divided without prejudice to or spoiling the whole ” in that section have reference to such other estate, as would be injured in like manner as a mill, mill privilege, or factory, would be by such a levy. And not to real estate liable to some, but not to such kind of injury by separating a portion of it by metes and bounds.- If this be not the true construction every debtor owning real estate would be liable to suffer *399all the inconveniences and losses attendant upon an estate in common, whenever those making a levy should judge that his remaining estate would be prejudiced by levying on a part of it by metes and bounds. And it is not difficult to perceive, that this might very frequently happen.
The estates referred to in the twenty-eighth section were probably such as the debtor might be entitled to enjoy the rents and profits of only; or such as the value consisted principally in the privileges and income annexed to them, as for instance acqueducts, works for lighting by gas, bridges, turnpikes, and canals when owned by an individual. It was however decided in the case of Barber v. Root, 10 Mass. R. 260, that the interest of the husband in the lands of the wife might be taken by a levy on the rents and profits. And that construction was admitted here in the case of Sturdivant v. Frothingham, 1 Fairf 100.
Whatever may be the true construction of these provisions, there is nothing in this agreed statement to prove, that the estate levied on could not be divided and a portion set out by metes and bounds without prejudice to or spoiling the whole estate. It therefore only proves, that the levy was injudiciously, not illegally made. It appears to have been made in a manner very inconvenient for both parties, and probably in a manner prejudicial to the interests of both. It does not however appear to have been intended by the statute, that the question whether the levy would be prejudicial or not to the remaining estate should be taken from those appointed by law to make it, and who could examine the estate and decide that question, before they completed the levy; and be transferred to a court having no such power conferred or opportunity afforded it for its proper exercise. The decision of those appointed to make the levy must be conclusive on this point unless they act fraudulently.
A case may perhaps be found so revolting to one’s sense of justice as to afford strong evidence, that the appraisers lent themselves as instruments to aid the creditor to perpetrate a fraud upon the rights of the debtor. But the court can never presume that they have done so. Such a case, if one should ever arise, must be presented to a jury for decision.
Plaintiff nonsuit.