#### Simeon Carpenter *et ux. versus*The Inhabitants of the First Parish in Sutton.

The condition of a mortgage of a farm was, that the mortgager should allow the mortgagee and another person to occupy certain apartments in his house on the premises, should provide for their support during life, and for their burial at death, and after their death should pay certain specified sums to individuals, and all the debts of the mortgagee then contracted. The farm was afterwards, in 1787, taken on execution against the mortgager and set off to the judgment creditor at an appraised value, which was stated in the return to be 66 after deducting the incumbrances thereon.” *Held,*that the levy and return were sufficient, and passed a good title to the judgment creditor*

This was a *writ of right*brought to recover an undivided moiety of a piece of land in Sutton, of which the demandants declare that one John Blanchard, the father of Sqjly Carpenter, the demandant, was seised within forty years, and was disseised by John Cole, who devised the premises to the tenants. Issue was joined upon the mere right.

At the trial, before *Parker*C. J., the demandants proved the seisin of John Blanchard, the ancestor, within the time alleged, and that he died in 1820, leaving Sally Carpenter and a son, his only children and heirs.

The tenants produced in evidence a mortgage of the demanded premises, made by John Blanchard to Joseph Blanchard, his father, dated September 3, 1784, the condition of which mortagage was, that John Blanchard should allow his father Joseph, and his uncle Thomas Blanchard, to occupy certain apartments in his house, which was on the demanded *52premises, during their respective lives, and should make pro vision for their support for life, in the manner particularly specified in the instrument, should pay all his father’s debts then contracted, should pay his sister Abigail Marsh £40, John B. Blanchard £23, and Joseph Blanchard junior £23, after the decease of the father and uncle, and should also give the father and uncle a decent Christian burial after their decease. This deed was duly recorded September 15, 1784.

*Oct. 2d.*

The tenants then produced a judgment recovered by Jonathan Maynard against John Blanchard, in the Supreme Court, and the levy of an execution which issued on the judgment, on the demanded premises, October 30, 1787, by which it appeared that the demanded premises were appraised at £21. 4s. lOd. “ after deducting the incumbrances thereon,” in full satisfaction of the execution. The execution and levy were duly recorded in the registry of deeds.

The tenants then produced a deed of the demanded prem ises from Maynard to John Cole, dated December 20, 1792, under which Cole entered and continued seised until his death in 1807, and also the last will and testament of Cole, which was duly proved and allowed, in which he devised the demanded premises to the tenants, who duly entered thereon and became seised under the will.

John Blanchard performed the conditions of the mortgage until the levy of Maynard’s execution, and Maynard continued to perform them until he conveyed to Cole, who performed them until his death, some of the conditions then remaining in force.

The tenants were to be defaulted, or the demandants non-suited, according to the opinion of the Court on the foregoing case. *53merely a lien, and therefore manifestly not capable of being valued.

*52*Sibley*and *Denny,*for the tenants.

The appraisement and lev)s were good, either under the 2d or the 4th section of *St.*1783, c. 57. It is good as a levy on the real estate under *sect.*2; the property taken was *land*of the debtor, notwithstanding the incumbrance, and therefore subject to the execution. The case of *Barnard*v. *Fisher,*7 Mass. R. 75, was decided on the ground of the absurdity of setting off land subject to an attachment, which is not an incumbrance, but

*53The levy is good under the 4th section, as a levy on the equity of redemption. Setting off the land' subject to the incumbrance, was substantially a levy on the equity. The return is sufficient in form ; it was not necessary to specify the nature of the estate taken. *Atkins*v. *Bean,*14 Mass. R. 408.

If this levy is not good, the estate of a mortgager in land could not have been taken on execution in any mode, at the tune when this levy was made. The levy was in the form in use at that time.

*Newton,*for the demandants.

The levy is void. The incumbrance in this case could not be estimated ; part of it was personal trusts. The levy therefore is as objectionable as that in *Barnard*v. *Fisher,*whi ;h was made on land subject to an attachment. The case of *Williams*v. *Amory,*14 Mass. R. 20, merely decides that remainders and reversions may be levied on ; but this is because the prior estate is capable of being estimated.

But the return of the levy is void for not setting forth specifically what the incumbrance was, which the appraisers valued. There is nothing to show that it was the mortgage which has been introduced in this case. The levy itself ought to show what the estate of the debtor is in the land set off. The return must make a complete title in itself; nothing can be supplied by extraneous evidence ; there is no presumption in favor of it. *Bott*v. *Burnell,*11 Mass. R. 163 ; *Holyoke*v. *Haskins,*5 Pick. 20 ; *Tolman*v. *Emerson,*4 Pick. 160.

The opinion of the Court was afterwards drawn up by

Parker C. J.

At the time of the levy of the execution ot Maynard against John Blanchard, there was no provision by law for the sale by the sheriff of rights in equity to redeem mortgaged lands, and yet by the 4th section of *St*1783, c. 57, it was specially provided, that such rights might oe attached on mesne process, and taken on execution to satisfy a judgment against the mortgager. The practice under that statute was, to levy upon the land subject to the mortgage, deducting the debt from the appraised value ; so that the judgment creditor held the land subject to the mortgage, as the *54debtor did before.1 It would not have answered to levy, as was suggested5 upon the rents and profits, because the mortgagee might at any time have entered and ousted the creditor thereof, and then there was no means of obtaining satisfaction. It was not until years after this levy, that provision was made for the sale on execution of rights in equity taken on execution. 5 Dane’s Abr. 23, c. 136, *art.*14, § 20. There was then in 1787 no way of satisfying a judgment from such rights in equity, but by appraisement, and of necessity the appraisers must have considered such incumbrances as were actually existing on the land, in their estimation of its value. The provincial statute of 8 *Geo.*2, c. 5, was then in force, which required that equities taken on execution should be appraised.1

Regularly, the officer’s return, or the certificate of the appraisers, should set forth the incumbrance existing on the land which they estimated in their appraisement, but as the mortgage deed was then on record, and the provisions of that deed creat ■ ed an actually existing burden upon the land, it ought to be presumed at this distance of time, near forty years after the levy, that the incumbrance mentioned was occasioned by that deed.2 If there were other incumbrances existing and not estimated, the loss was to the creditor and not the debtor.

The case of an attachment is very different from that of a charge upon the land by deed. None of the reasons given in the case of *Barnard*v. Fisher, 7 Mass. R. 75, apply in this case.

*Demandants nonsuited.*

1

 See *Warren*v. *Childs,*11 Mass. R. 226; *White*v. *Bond,*16 Mass. R. 400*Cushing*v. *Hurd,*4 Pick. 253.

1

 It is now provided by the Revised Stat. c. 73, § 31, that all rights of redeeming mortgaged real estates may be taken and set off on execution for debts of the mortgager or owner, in the same manner as the land might be taken and set off, if it were unincumbered; excepting, that the appraisers shall deduct the value of the incumbrance or the amount of the mortgage debt, when known, from the estimated value of the premises.

2

Under the Revised Stat. c. 73, § 31, it is necessary that the sum deducted en account of the incumbrance should appear in the return of the execution