It is very manifest that the officer who levied the execution under which the demandants claim their title, and the appraisers who set off to them an undivided interest in the demanded premises, fell into two very serious errors. They have undertaken to set off a homestead right to a man who had no such right; and they have also set off this supposed homestead in such a manner that he could not hold it, even if he had such a right. The judgment debtor in this case had fulfilled none of the conditions prescribed in the Gen. Sts. c. 104, § 2, to entitle him to a homestead; and even if he had done so, there is no authority on the part of any officer or appraisers to give him, as his homestead, an undivided share in a dwelling-house to be *421held and occupied in common with other owners. From the nature of the case, the homestead is for the personal use of the debtor and his family, and must be several and exclusive as far as it goes. So far thén as the officer and the appraisers undertook to act on the subject of the judgment debtor’s homestead, their doings were simply void, and the eight undivided eighteenth parts of the premises described in the declaration, which they undertook to set off to him as homestead, remain wholly unaffected by the proceedings.
It does not follow, however, that the levy of the execution is rendered invalid, in consequence of this mistake. It appears upon the face of the return, and of the certificate, that, after a careful examination, the appraisers were of opinion that the premises could not be divided without damage to the whole, and also that their value exceeded the amount of the execution under which they were acting. Primá facie, then, it would be a case in which, under the Gen. Sts. c. 103, § 10, the levy might lawfully be made upon an undivided portion of the whole, to be determined by the appraisers. It is true they precede this portion of their certificate by words which indicate an intention to set off to the judgment debtor his supposed homestead ; and if there appeared to be any ground to suppose that the setting off of this homestead produced the indivisibility which they find in the premises, or added anything to the difficulty of so dividing them as to give to the judgment, creditors a portion in severalty, undoubtedly the levy of the execution would be void. But it is to be remembered that they were dealing with a very small lot of land, fifty-two and a half feet long and twenty-seven and a half feet wide, on which stood a dwelling-house, and that they were acting on the assumption, erroneous as it was, that the debtor’s homestead was to be provided for first, and the satisfaction of the execution was to come next. They could not possibly have supposed that a homestead in the shape of an undivided share of the house would be so convenient or desirable to the debtor as a several and distinct portion of which he and his family could have the exclusive occupation. The recital as to the indivisible character of the estate precedes the attempt to *422set off the homestead, and in fact seems to be set forth as the reason why they set off the homestead in that peculiar and irregular manner. There seems, therefore, on the face of the return and certificate, to be no reason whatever for saying that the allowance of the homestead created the difficulty of dividing the land, or had anything to do with it. On the contrary, the fair interpretation of the certificate seems to be its literal interpretation, and the appraisers must be viewed as certifying that the estate could “ not be divided without damage to the whole,” whether for the purposes of the homestead or of the execution.
If then all that was done by the officer and the appraisers in relation to the supposed homestead is to be treated as a mere nullity, the return would show simply that thirteen undivided eighteenth parts of the land remain untouched and unaffected by their proceedings, and that the execution was duly and properly levied upon and satisfied out of the remaining five eighteenths. The superfluous labor expended in misdescribing a portion of what the execution did not take, and giving to that portion a name which does not belong to it, would do neither good nor harm to the title of either party, but would be simply a nullity.
The'case therefore was improperly withdrawn from the jury and the Exceptions are sustained.