
    Rufus Bacon versus Horatio Leonard.
    On a writ of attachment the officer returned, that he had “ attached the homestead farm of the debtor, containing about 30 acres, more or less.9’ Held that this was a sufficient description of the farm, although in fact it contained about 160 acres, the statement of the number of acres being rejected as a mistake in the officer, or as repugnant to the more general description.
    Where an officer, having seized an equity of redemption upon two executions against the same debtor, sold it upon one only, and after satisfying that execution with part of the proceeds applied the balance to the other execution, the levies were held to be legal.
    Where a mortgager assigns his equity of redemption after it is attached, and the officer afterwards sells it upon the attaching creditor’s execution, which is satisfied by a part of the proceeds, and having no notice of the assignment, applies the surplus in satisfaction of another execution against the mortgager, he is not answerable to tlie assignee for such surplus
    This was an action on the case against the defendant as sheriff of Bristol, for an alleged default of Lynde Valentine, one of his deputies, in not paying over to the plaintiff a balanee of money arising from the sale of the equity of redemption of certain real estate on an execution in favor of Weaver and Pierce against Apollos Dean.
    On a case stated it appeared, that Apollos Dean owned certain real estate in Freetown, on both sides of the highway leading from Assonet to Berkley meetinghouse, consisting of about 150 acres, with the buildings, &c., which was devised to him by his father, and on which he lived. On the 7th of September, 1821, he conveyed to Charles Strange, in mortgage, a parcel of meadow, pasture, and wood land, containing about 70 acres, lying on the east side of the highway, being part of the land devised. On the 31st of July, 1822, he conveyed to Strange, in mortgage, all that part of the homestead farm on which he lived, situated on the west side of the highway, containing about 50 acres, together with the dwellinghouse, &c. ; also another lot containing about 30 acres. This lot was detached from the rest of the farm, having no buildings on it, and was devised to Apollos with the rest of ^arm > as was also the lot of 50 acres.
    Before the execution of the deeds of mortgage, the land included therein had been attached in a suit against Apollos in favor of Enos Dean, who recovered judgment at October term 1822 of this Court, and within thirty days afterwards extended his execution on about 15 acres of that part of the homestead which was situated on the east side of the highway, and on about 40 acres of the part on the west side, all of which was included in the deeds of mortgage.
    On the 26th of November, 1821, one Newhail caused the land mortgaged to be attached on a writ against Apollos, and on the 20th of May, 1824, he levied on about 18 acres, included in the first mortgage, but not levied on by Enos Dean.
    On the 26th of March, 1823, Levi Dean sued out a writ against Apollos, on which a deputy sheriff returned, that he had on that day, “ attached the homestead farm of the within named Apollos Dean, together with the buildings thereon standing, containing about thirty acres, be the same more or less, situated in Freetown.”
    On the 2d of August, 1823, Weaver and Pierce also sued out a writ against Apollos, on which Valentine returned, that he had on that day “ attached the homestead farm, with the buildings thereon standing, &c., situated &c., bounded &c., containing about 180 acres, be the same more or less.”
    Judgment was rendered in these two last actions in June 1824, and the executions were delivered to Valentine by the ' attorney of the creditors in both actions, with directions to seize the right in equity of Apollos Dean, on both executions, and to sell it on the execution of Weaver and Pierce. Valentine made a return, on this last mentioned execution as follows : — “July 16,1824. By virtue &c., I have taken all the right in equity which the within named Apollos Dean, the debtor, has, of redeeming the following described real estate, &c., mortgaged by the said Apollos Dean to Charles Strange, &c., consisting of two several tracts, &c., the first is bounded, &c., containing about 130 acres, &c., with the dwellinghouse, &c., and is the same farm or tract of land on 
      wh’ch the said Apollos Dean now lives. Also another lot of land, situated &c., bounded &c., containing about 30 acres &c., the said right in equity having been previously attached by me on the original writ &c., and afterwards on die 21st day of August, 1824, sold the same, &c., and of the money &c. applied &c. to this execution in full satisfaction, leaving a balance in my hands of 132 dollars and 63 cents, which I indorsed on another execution, &c., in favor of Levi Dean against Apollos Dean, which was placed in my hands for collection before advertising and selling this equity of redemption.”
    On Levi Dean’s execution Valentine returned accordingly, that he had applied, in part-satisfaction of it, the balance above mentioned, and that the execution was committed to him within thirty days after the rendition of the judgment.
    On the 6th of October, 1823, Apollos Dean conveyed to the plaintiff the homestead farm on which he lived, which was bequeathed to him by his father, bounded &e- and containing about 150 acres.
    According as the opinion of the Court should be on these facts, the plaintiff was to become nonsuit, or the defendant to be defaulted.
    
      Bacon (pro se) contended,
    that the attachment on the writ of Levi Dean did not cover the estate mortgaged to Strange and subsequently conveyed to the plaintiff.
    But supposing it to be otherwise, by L. Dean’s consent that the whole equity should be sold on the execution of Weaver and Pierce, he abandoned his attachment.
    The equity of redemption has never been sold on L. Dean’s execution ; consequently his levy is void, not having been made pursuant to the forms prescribed by the statute. Where there are two attachments and two executions, the equity must be sold on both.
    The case of Clark v. Austin, 2 Pick. 528, shows that the balance in question ought to have been paid over to the plaintiff.
    
      W. Baylies and Hathaway, for the defendant.
   The opinion oí the Court was drawn up by

Parker C J.

We have not had distinctly presented to us in the argument the question probably intendea to be raised ™ this statement of facts; but as the action is against the sheriff for not paying over to the plaintiff the proceeds of the sale of the equity of redemption, sold on the execution of Weaver and Pierce against Apollos Dean, after satisfying that execution, we must presume it is intended to deny the right of Levi Dean, to whom the residue was paid, to receive any thing by virtue of his execution. The action must proceed on the ground that the equity was duly sold, for if it was not, the plaintiff can have no interest in the proceeds. His remedy in that case would be upon his title; for his action against the officer for not paying him the proceeds affirms the legality of the sale. So that the only question we have to decide is, whether by virtue of Levi Dean’s attachment, judgment, and execution, he could lawfully demand and receive of the officer so much of the proceeds of the sale as was left after satisfying Weaver and Pierce’s execution. If Levi Dean’s attachment was not sufficient to hold the equity, then as the plaintiff’s title by deed conveyed to him all the interest remaining in Apollos, after the attachment of Weaver, he had a right to demand and receive the surplus.

The objection to the validity of the attachment, is, that it did not cover all the land, the officer having returned that he attached the homestead containing about 30 acres, more or less, whereas the homestead, as devised to Apollos Dean, and mortgaged to Strange, contained at least 150 acres. But we think the attachment of the homestead was a sufficient description of the whole of the land devised and occupied as one farm by Apollos, and that the number of acres, being only a part of the description, and that inconsistent with the more general description, ought to be rejected as a mistake in the officer, or as repugnant.

It is said, then, that the sale should have been on both executions, and being only on Weaver’s, that Levi Dean could not have his applied to the proceeds by the officer. But we see no grounds for this ; the equity will produce its full value as well if sold on one, as on both, and the expense ot two sales may well be saved, the statute providing fcr a distribution of the proceeds among all the executions which may be in the officer’s hands; he being obliged to regal'd priority of attachments, as he would in the case of a sale of personal estate. One execution gives him full authority to seL, and the appropriation of the fund has no relation to this authority.

But there seems to be another ground to prevent the plaintiff from recovering in this action. By St. 1804, c. 88, § 6, it is provided, that whenever an officer shall have m his hands any money arising from the sale of any equity of redemption, or personal property, more than sufficient to sat isfy the execution or executions on which such equity of redemption or personal property was taken and sold; such officer shall apply the same surplus money to the payment of any other execution which he may have in his hands unsatisfied against the same debtor, or which may be delivered to him before he shall have paid over such surplus money. Now it is agreed that no demand was made by the plaintiff on the officer for the surplus, until the 27th of February, 1826. The sale was made in July 1824, and he then had in his hands the execution of Levi Dean. Certainly the plaintiff was bound, if he would have claimed the surplus on account of the conveyance to him, to give notice to the officer of his intention ; for it was not the duty of the officer to search the records, to see if any conveyance had been made of the equity, which would supplant any execution in his hands. The plaintiff gave no notice, made no demand for eighteen months after the sale of the equity and after the money had been paid over according to the officer’s apparent duty by the statute. We think, on this ground, it is clear that the action is not sustained.

The case of Clark v. Austin, 2 Pick. 528, relied upon by the plaintiff, does in no respect militate against this decision. The sheriff, in that case, having notice of the right of Clark as assignee of the equity of redemption, paid over the surplus tu him, as he ought to have done, for Clark’s right was pre-

cedent to the right under the other executions ; b>'t here Levi Dean’s lien by attachment preceded the plaintiff’s right as assignee, and on this ground he would fail in his action; besides which, the payment over to an execution creditor before any demand of the plaintiff as assignee, is a sufficient • defence to the officer. 
      
       See Brown v. Bellows, ante, 190, note
     
      
       See Revised Stat. c, 97, § 32.
     