130 Mass. 163 | Mass. | 1881
Under the Gen. Sts. e. 103, a levy of execution upon real estate could be made by sale in the case of rights to redeem mortgage lands only, and in all other cases must be made by appraisement and setting off. But by the St. of 1874, c. 188, any interest in real estate, which might previously have been levied on by extent, may now be levied on by sale. Gen. Sts. c. 103, § 1. St. 1874, c. 188, § 1. Hackett v. Buck, 128 Mass. 369. Woodward v. Sartwell, 129 Mass. 210.
The levy in this case, having been by sale, must be considered as made at the time of first giving the notice of sale. St.
The bill of exceptions does not show that any objection was taken at the trial to the omission from the levy of the third lot, “ lying wholly or partly in Dracut ” in the county of Middlesex; nor does it show that any part of that lot was within the county of Essex. There is nothing therefore to impeach the validity of the levy upon the debtor’s undivided share in the two lots which, so far as appears, constituted the whole estate in common in this county. Blossom v. Brightman, 21 Pick. 283. Peabody v. Minot, 24 Pick. 329, 333. The levy having been made by sale, and not by appraisement and setting off, the provisions of the Gen. Sts. c. 103, §§ 9, 10, cited for the tenant as to levying on such undivided portion as the appraisers may deem sufficient to satisfy the execution, have no application.
Under the modern statutes, although it is not usual to issue an execution for alimony without previous notice and hearing, yet it is within the discretion of the court, upon a consideration of all the circumstances of the case, to order such an execution to issue without notice. St. 1820, c. 56, § 2. Rev. Sts. c. 76, § 38; c. 81, § 9. Gen. Sts. c. 107, §§ 45, 53; c. 113, § 23. Morton v. Morton, 4 Cush. 518, 519. Newcomb v. Newcomb, 12 Gray, 28. Chase v. Chase, 105 Mass. 385. Slade v. Slade, 106 Mass. 499. And the court, under the power conferred by the St. of 1874, c. 205, to make such “ order as it deems expedient for the support of the wife,” had a like discretion.
.Exceptions overruled.