I concur in the opinion, that the deed from Mercy Sawyer was not void. That mode of conveyance has been sanctioned, by long usage, in this state. But aside from any such usage, I do not think, that upon the principles of the English common law, the deed would be inoperative. It purports to convey to the grantees, and their heirs and assigns forever, the grantor’s interest, with a reservation to the grant- *552or, of the use and improvement of it, during her life. If the reservation could not operate to retain in the grantor a life estate, it would not operate to destroy the effect of the previous words in the deed, by which an estate in fee was granted. Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cres. 709.
But the principal question is, whether the plaintiff’s execution has been legally levied, and his debt satisfied. If so, he cannot recover in his present suit. It appears from the plaintiff’s replication, that the execution was levied upon one undivided third part of a certain lot of land, owned by the defendant and others, as tenants in common ; and that such proportion of it, was set off in satisfaction of the execution as the debt and costs bore to the appraised value. It is not denied, that the defendant owned the part levied upon. Indeed, this fact is expressly admitted, by the plaintiff. But the claim is, that the defendant owned a greater interest, that is, “ one moiety” of the properly, “one third part of the whole estate being subject to an estate for life in Mercy Sawyer.” In other words, the defendant owned one third of the property, unincumbered, and one sixth part encumbered by Mercy Sawyer's life estate.
The unincumbered part was more than sufficient to satisfy the plaintiff’s demand. Had he not a right to levy upon that, and apply so much of it as was necessary to satisfy his debt ? I can see no sufficient reason why he might not do it. Had the defendant owned the whole estate in severally, subject to a life estate in a definite part, it is very clear, that the creditor would have been under no obligation to lake any part of that which was incumbered, provided the remainder was sufficient to satisfy his demand. The same principle, in my opinion, is applicable to the case under consideration.
In the case of Marcy v. Kinney, 9 Conn. Rep. 394. 400., the court say, that “ the proper way” to levy an execution, “is for the officer to levy upon what he supposes enough to satisfy the execution, the whole tract or less ; to get the opinion of the appraisers; then, if it is more than he needs, levy on so much as, in the opinion of the appraisers, will satisfy the execution ; make his return according to the last levy ; and let their certificate correspond with that return’” In the case cited, the court was speaking of the levy upon property owned in severalty ; but the same rule applies to a levy upon property owned by one tenant in common. There is no more necessity of *553appraising all the debtor's interest, in the one case, than in the other.
In the case under consideration, the officer levied upon one undivided third part, caused that to be appraised, and then set off such proportion of it as was necessary to satisfy the execution. A definite rule is given, by which the plaintiff’s interest in the whole tract may be ascertained. Suppose the plaintiff’s execution had amounted to just the value of one third part. Then the plaintiff would have owned the one third part unincumbered ; the defendant one sixth part, encumbered by Mercy Sawyer’s life estate ; and the heirs of James Sawyer, the remainder, subject to the remainder of the life estate. No difficulty could arise in the division of the property. But in the present case, the plaintiff’s interest is less than one third ; consequently, the defendant owns the remainder of it, also the one sixth part.
Had the plaintiff levied his execution in the manner claimed, that is, by taking an undivided portion of ail the defendant’s interest, the partition of the property would have been rendered more difficult and complicated. For, in that case, it would be necessary to set out the life estate of Mercy Sawyer, partly in the plaintiff’s share, as well as partly in the defendant’s ; whereas, according to the present levy, her interest in the part that originally belonged to the defendant, may be apart-ed to her in the share still belonging to the defendant.
From the best examination I have been able to give this case, I am satisfied, that the plaintiff’s execution was legally levied and satisfied ; and consequently, that there is no error in the judgment complained of.
Judgment reversed