By the decision of this Court, in Steward v. Allen, 5 Greenl., 103, the plaintiff is entitled to the remedy he seeks. The facts in that case are the same as in this; and the statute then in force contained the same provisions as are found in c. 76, § 18, B. S. But it is said that § 27, of the same chapter, not then enacted, qualifies § 15 and prevents its operation in such a case as the one at bar. It is true that the section referred to provides another and a different remedy, but not necessarily an inconsistent one. The two sections are entirely independent of, and in no way connected with each other. The 27th does not in its terms purport to qualify, limit or restrain the other in any respect. The two are not in any sense antagonistic, but each can stand and have its full force and meaning, without, in the slightest degree, interfering with the other. The language in § 27, providing, in cases there referred to, that the levy *32shall be valid, does not mean that the creditor shall be bound by it. He may waive it though valid, as he might do in certain cases under § 18. The meaning is, that notwithstanding his ignorance of the mortgage he may still avail himself of his levy, and recover of the debtor the amount paid to the mortgagee.
This section is a reenactment of § 32, c. 94, R. S. of 1841. By referring to that statute, we find the words, "still, the creditor shall hold the premises by virtue of his levy,” &c., plainly indicating a choice given to the creditor, as to whether he would retain his levy or otherwise. There is no indication that the Legislature intended to change the meaning by a change of language, and a fair construction of the words will show that they have not done so. This provision was undoubtedly made for the benefit of the creditor. Previous to that, a levy made upon land under mortgage, could only be sustained, when the return shew that the creditor elected to disregard the incumbrance. When it was unknown, this could not be done; therefore, in such cases, the levy was void. Steward v. Allen, above cited; Litchfield v. Cudworth, 15 Pick., 23; White v. Bond, 16 Mass., 400; Brown v. Clifford, 38 Maine, 212. Hence, as the law formerly was, if the creditor overlooked a mortgage, on which the amount due was but small in proportion to the value of the land, still he would lose his levy and often his debt. To avoid this, the statute was passed to enable him, if he chose, to retain his levy and at the same time to recover of the debtor what he might be obliged to pay to relieve his land. But, if we give the statute the force contended for by defendant’s counsel, it would often be a hardship rather than a benefit, for, in the case at bar, as in all similar cases, when the mortgage debt exceeds the value of the estate levied upon, the creditor must either lose his debt or increase it, perhaps largely, and take his chance of recovering it of a debtor of at least doubtful responsibility. This construction of the statute would be contrary to its general scope and policy, and is not required or *33even sustained by its terms. It follows that a creditor may avail himself of either section, when his case comes within its provisions.
Judgment for Plaintiff. —Levy set aside, and an alias execution to issue for the amount due on the original judgment.
Appleton, C. J., Cutting, Kent, Dickerson and Barrows, JJ., concurred.