
    John Atkins, Petitioner, &c., versus Henry Bean and Others.
    An execution was extended on an undivided seventh part of a remainder in fee, ' the judgment debtor, in fact, owning but nine sixty-fourth parts; and it was holden sufficient to pass the debtor’s estate.
    This was a petition for partition, in which the said John alleges that he is seised of one eighth part of the * premises therein described, in common with the respondents, and prays to have the same set off to him in severalty. 0
    The cause was submitted to the decision of the Court upon the following facts agreed by the parties : —
    The Rev. Joseph Bean, grandfather of Nancy Bean, one of the respondents, and father of the other respondents, and also of Cyrus
    
    
      Bean,
    
    hereinafter mentioned, died seised in fee of the premises in December, 1784, leaving a widow and eight children, viz., Joseph, William, Henry, Cyrus, Horace, Elizabeth, Mary, and Sally; and leaving a last will and testament, afterwards duly proved, and in which he devises his whole estate, real and personal, to his said widow, for her sole use and improvement so long as she should remain his widow; and at the expiration of that term he devises the same over, to be equally divided amongst his children, their heirs and assigns.
    He appoints his widow sole executrix, and authorizes her to sell and dispose of so much of his real or personal estate as she should think best, as should enable her to discharge all his just debts.
    
      Joseph,
    
    the said testator’s eldest son, died in 1789, being more than twenty-one years of age, intestate and unmarried.
    
      William,
    
    the second son, died in 1802, leaving the said Nancy his only child and heir.
    In the year 1808, one Marshal Spring recovered a judgment against the said Cyrus Bean, for the sum of 286 dollars, and caused his execution thereon to be extended on one seventh part of the premises described in the petition ; the said Cyrus and his mother, the widow of the said testator, being then both in full life.
    [A copy of the execution, and of the return thereon, came up in the case. The appraisers describe the whole premises by their metes and bounds, and they appraise and set off one undivided seventh part thereof to the creditor. The officer returns that he extended the execution on the same estate, and that he set it out to the creditor in part satisfaction of the execution. Neither the appraisers nor the officer describe the nature of the * debtor’s estate in the premises, nor mention the estate of the widow therein. The officer does not certify the delivery of seisin; but an attorney of the creditor acknowledges himself to have received seisin and possession from the officer.]
    The said Cyrus died unmarried and intestate in 1815, and the said widow of the testator in 1816.
    If, upon the facts stated, the Court should be of opinion that the said Cyrus, at the time of extending said execution, was so seised of one seventh part of the said premises, as that the same could be taken in execution, and that the doings of the appraisers and officer relative to the same were sufficient to pass the same, it was agreed that judgment for partition should be rendered, and that the proportion which legally passed to said Spring by the said extent should be set off to the petitioner; otherwise the petitioner was to discontinue his petition.
    
      A. JY. Fuller, for the respondents,
    argued that the remainder, which was to be divided among the testator’s children after the death of the widow, was limited to the children who should survive her; and that Cyrus, dying before his mother, took nothing.
    The taking of real estate upon execution being unknown to the common law, and wholly depending on statute provisions, the statutes must be strictly complied with. The statute requires certainty, and that the estate levied upon should be set off by metes and bounds ; neither of which could be complied with in this case. If any one of the children should die before the widow, the estate of the survivors would be increased. The extent of an execution on part of the estate of a tenant in common by metes and bounds is void.  If the extent of this execution had been on the land of Cyrus Bean, and after the extent some of the other children had died, living the tenant for life, the share of Cyrus would have been increased, and he would have had a remnant, to be divided to him on the death of his mother; which would cause an inconvenience similar to that of taking part of the estate of a tenant in common.
    *If Cyrus took an immediate estate at the death of the testator, it was an eighth part; and on the death of his brother Joseph, he took one eighth part of his share, and thereby became seised of nine sixty-fourth parts. The extent is of nine sixty-third parts, a portion which Cyrus never had.
    Other objections to the extent are, that no notice is taken of the particular estate of the widow ; and a present estate was set off to the creditor instead of a remainder; that the officer does not certify that he delivered seisin to the creditor, without which the title" to the estate is not affected.  The receipt of the attorney is of no ova 1, unless recognized by the officer. 
    
    If the Court should be of opinion that the petitioner is entitled to a less share than by his petition he has claimed to have, the respondents are entitled to costs.
    
      Richardson for the petitioner.
    
      
       12 Mass. Rep. 348, Hartlet vs. Harlow. —13 Mass. Rep. 57, Baldwin vs. Whiting & Al
      
    
    
      
       9 Mass. Rep. 96, 99, Bott vs. Burnell. — 2 Mass. Rep. 154, Eddy vs. Knap.— 11 Mass. Rep. 515, Boylston vs. Carver. — Ibid. 163,165, Bott vs. Burnell.—4 Mass. Rep. 402, Ladd vs. Blunt.
      
    
    
      
       8 Mass. Rep. 113, Herring vs. Polly.—I Mass. Rep. 19, Fowler vs Shearer
      
    
   Per Curiam.

Cyrus Bean had, by virtue of his father’s will, a vested remainder in the estate ; his mother having only a life estate, with a power to sell in fee; which being never executed, the remainder was not disturbed ; and this estate was liable to extent by execution for the debts of Cyrus.

The levy upon the debtor’s undivided estate in common is good, and the estate sufficiently described. The error in the proportion owned by the debtor produces no mischief, as it comprehends the whole of his interest. The levy is good for an eighth, although it purports to be of a seventh. The mistake prejudiced none but the creditor; and perhaps.he would have his remedy, by showing that part of the estate set off did not belong to his debtor. If one conveys by deed more land than he owns, the deed is good for what he does own. So if an execution be levied upon one hundred acres, and the debtor had a title but to fifty, the levy is good for the fifty ; and the same reason applies where a similar mistake occurs in levying upon the estate of a tenant in common. The cases cited only show that the debtor’s interest in an estate, holden jointly or in common with others, cannot be set off in any particular part of the * common estate. Here more than his interest in the whole was set off.

It is not necessary, although convenient, that the appraisers, oi the officer in his return, should set forth the nature of the estate taken, or the estate of the tenant for life. All the right, title, interest, &c., of the debtor would pass the remainder, as in a deed.

As to the objection that the officer has not returned that he de livered seisin to the creditor or his attorney, seisin, in fact, could not have been given, as the life estate was then in being. But a constructive seisin may be presumed from the words of the return, viz., that he extended the execution. It is also to be presumed, unless the contrary is made to appear, that the execution was returned by the officer, with the endorsement of seisin upon it by the attorney of the creditor ; and that is sufficient evidence that seisin was given, as required by the statute.

The petitioner can have partition but of nine sixty-fourth parts, which being less than he demands in his petition, the respondents must recover their costs, 
      
       13 Mass. Rep. 20, Williams vs. Amory.
      
     
      
      
         [Cutting vs. Rockwood, 2 Pick. 443. — Ed.] .
     