Littlewood v. Wardwell

Peters, J.

In October, 1875, the demandant, in conjunction *216with two other creditors, simultaneously levied their three separate executions upon the land of the defendant, each taking an undivided fraction thereof, unitedly taking the whole. In each case the seizure was on the 18th, the officer’s return on the 22nd, and the acceptance by the creditor on the same day. The set-offs were in all respects regular and conformable to the requirements of the statute, so far as the face of the proceedings is concerned. The defendant, however, shows that the three levies did not take his whole parcel of land, but only a divided part of the whole, each levy taking a fractional part of only a portion of his land. The objection is that, as between the parties to this suit, the operation of the demandant’s levy would be to make the debtor a tenant in common with the demandant in a portion of the premises and an owner in severalty in the residue. To meet this difficulty, the demandant proves that, on the day of the date of the officer’s return (October 22nd) the debtor conveyed the portion .left to him in severalty to another person by a warrantee deed. Shall the levy stand ?

Why has not a just and legal result been reached, even if there was an irregularity in the order of the steps taken to produce it ? By means of tire levies and the conveyance, taken in conjunction, all the elements co-exist by which the title of the debtor in all the land passes from him. Had the debtor’s conveyance preceded the levies but for an instant, no exception to them could have been taken. Why has not precisely the same result been attained by the debtor’s conveying subsequently to or contemporaneously with the levies ? The same coincidence of facts exists as would have, if the order of the proceedings had been reversed. How is it material to the debtor that one step was taken before the other? Before the result was fully accomplished it might have been so. The creditor when he levied, took the risk of what the debtor would do. The control of the matter was wholly in the debtor’s hands. He could have the levy valid or invalid. But the creditor’s difficulty is avoided. The objection that the debtor is left owning a part of his land in common and a part in severalty disappears by his own act. He applies the remedy to the difficulty himself. The presumption is that it was his election and prefer*217cnee to have the levies upheld. The facts manifestly indicate that the levies and the conveyance were intended by all parties to have the effect of concurrent and co-operating acts for the benefit of all concerned. The deed alludes to the levy as a boundary, and still the deed was recorded nearly a month before the levy was. The levy was completed on the 22nd of October, being the day on which the conveyance was dated and (presumably) delivered. The return of the officer was made on that day. The creditors could have repudiated the levies on that day and had others made, and it is not unlikely that they would have done so, but for the fact that the conveyance was made or was to be made in accordance with the levies. We think it would do no violence to the probabilities of the case, to infer that the creditors avoided taking the portion of the land exempted from the levies for the reason that the debtor was about conveying it, and in order not to contravene his interests and wishes.

The condition of parties here bears some resemblance to the dilemma that co-tenants get into, where one tenant conveys to a third person his interest in a specific portion of the common property. Such a conveyance does not bind the co-tenant. But by his own conveyance to others, or by partition at law corresponding with all the interests, the irregularity may be avoided and tlie first conveyance upheld.

No other question is raised by the defendant. We think the levy must be sustained. By the terms of the report, the entry to be:

Action to stand for trial.

Appleton, C. J., Walton, Barrows, Virgin and Libbev, J J., concurred.