48 Vt. 550 | Vt. | 1876
The opinion of the court was delivered by
I. The alias execution was not properly issued. As it was issued, it did not set forth the foundation of its commands, nor the commands themselves, truthfully. It recited the recovery of judgment as to term of court and amount of damages and costs, correctly, but when it went on and recited further, that thereof execution remained to be done, it stated it wrongly, for execution remained to be done for only a part thereof. The execution should have stated the judgment as it did, which was according to the fact, and here great aceuracy is required, and then it should have stated, whereof execution remained to be done as to so much of the judgment as remained unsatisfied, and proceeded to command the officer to levy and collect it in usual form. The receipt indorsed upon it was of a date before the issuing of the execution, and might not clearly show to every one interested, whether the amount of it had been taken out of something else, or was to be taken out of the amount commanded to be levied. And if understood, it was no part of the execution, and would not be required to be recorded with it when that was required to be recorded ; and as the correct record of it might be quite important, the receipt indorsed would not make the execution justly equivalent to what it would have been if it had been right. As it was, the debtor in it, plaintiff here, was entitled to have the execution itself set aside, and leave the creditors to pursue their rights by taking-out a new one.
II. The appraisers on the execution appraised the value of the entire premises, and ascertained- the amount of incumbrances
III. The homestead act, and the provisions with respect to setting out homestead when premises including a homestead right of a debtor are levied upon, as they stand now, were passed long-after the passage of the statute relating to setting off estates that cannot be divided without great injury to the interests of the parties, to which reference has been made, and the provisions of the homestead law are paramount. According to these provisions, the homestead must be set out from the residue before the residue can be set out'on the execution. In this case the return shows that the premises included a homestead right, and the levy was proceeded with upon the assumption that the right was there, and still nothing was done toward setting it out as the statutes provide. If the levy had been made in other respects so as to save to the debtor his right to redeem, the ascertainment of the exact limits of the homestead right, would have been important to him in determining whether he would redeem or not. As a levy, it is irregular, because the homestead was not set out.
IV. The irregularity in the execution was a matter of substance and not of form merely, and^there is no question made but that in such a case this is the •proper method by which to correct
The judgment is reversed, and the demurrer is sustained, and the replication adjudged insufficient, and judgment that the execution and levy are set aside, with one cent damages and costs, the plaintiff waiving all claim to further damages.