
    Lodowic Stanton vs. Cranmer Bannister.
    Bennington,
    February, 1830.
    That the levy of an execution is void, if the plaintiff and a justice of the peace appoint all the appraisers, without any notice by the officer to the debtor to appoint.
    If such levy is read to the jury without objection, stilly invalidity may be urged in argument, and the court may be requested to instruct the jury upon the subject.
    But,’when the whole cause is submitted to the jury, it is too late to raise such question anew.
    After all this, the levy being void, the court, on motion and affidavits, will grant a new trial on such terms as make plaintiff good as to costs.
    This was an action of ejectment for lands in Pownal. It was originally brought against Bannister and one Joseph Miers.— Miers filed a disclaimer, on which an issue was joined, and having had two verdicts in his favor, he was left out of the action. On the last trial between ‘Stanton and Bannister, the former recovered, and exceptions were allowed, on which the cause was brought up to the Supreme Court.
    
      'The plaintiff claimed title by virtue of the levy of an » « . , , ^ „ ( , in his favor against Bannister. The title of Bannister was in right of his wife, being a portion set off to her before marriage of the estate of Ephraim, Mann deceased; The record of thé plaintiff’s judgement, execution and levy, were read to the jury without objection. The plaintiff then offered a transcript of thé record of the court of probate, showing a division of the real estate of said Mann, among his heirs, made by a committee, and assigning the premises in question to Tryphosa Mann, now the Wife of said Bannister ; accompanied with a writing, not under seal, but signed by all the heirs, agreeing to the said division.— This was objected to, but admitted-.
    The plaintiff then produced and read the record of the marriage of Bannister and said Tryphosa.
    
    The plaintiff also adduced testimony to prove Bannister in possession of the premises, at the time of the commencement of this action;
    The defendant then read to thé jury a deed of said premise's from Bannister to one Comfort Mann.
    
    The plaintiff then read to the jury a deed from said Comfort Mann to one Nathan Jewett-, and a deed from said Jewett to Comfort Mann-, and a deed from Comfort Mann to said Joseph -Miers-, all conveying the same premises. The plaintiff also introduced testimony tending to show said deeds to be fraudulent and void.
    The exceptions showed a request of defendant’s counsel for thé court to charge in defendant’s favor upon several points relating tti the defects in the levy, and defects in the division, shown, among the heirs of Ephraim Mann. The court did not so chargé as requested by the defendant’s counsel; but did instruct the jury, that, if they found from the evidence the above deeds to be fraudulent, the plaintiff would be entitled to recover; and further, that, as the record of said levy was admitted and read to the jury, without objection, it was to be received as testimony» Upon a detailed statement of facts, of which the foregoing is a summary, the cause was argued before the Supreme Court.
    
      Argument for the defendant. — I. It is contended by the defendant, that the division read in evidence to the jury ought to have been excluded. Before the division became proper evidence it should have been shown, 1. That a division of the estate of Ephraim Mann, deceased, had been ordered by the probate court. 2. That the committee were legally appointed by the court of probate. 3. That a legal warrant issued to said committee. 4. That said committee were sworn. 5. That their return was recorded in the town clerk’s office in Pownal. — Stat-1797, sec. 41, p. 135. — 1 D. Chip. 357, ex parte Robinson a%"
    
    The agreement of the heirs of Ephraim Mann to the division does not make it legal and valid ; because 1. Said agreement was not under seal. 2. It was not duly acknowledged by the parties. 3. It was not recorded in the town clerk’s office in Pow~ nal. — Prob. stat. 1797, sec. 41. — Swift's. Ev. 5.
    The court of probate is of limited jurisdiction. It derives its powers from the statute, and must strictly conform to the statute. •— Clapp vs. Beardsley, 1 Aik. Rep. 168. — 17 Mass. Rep. 91.
    JL. The levy of the execution, shown in evidence by the plaintiff,is void. — Eddy vs. Knapp, 2 Mass. Rep. 154. — Tate et al. vs. Anderson, 9 Id. 92. — Whitman vs. Tyler,8 Id. 284.— Williams vs. Amory, 14 Id. 20. — Me Lellan vs. Whitney, 15 Id. 137.— Paine vs. Webster et al, 1 Vt. Rep. 129. — Fox vs. Hills, 1 Con. Rep. 295. — It appears by the levy shown in evidence, 1. That the plaintiff chose one of the appraisers, and the plaintiff’s attorney called on a justice of the peace, and said justice chose two other appraisers. 2. It does not appear by the levy, that said justice could by law judge between the parties in civil actions.— Stat.p. 210. — 3. It does not appear by the levy that either party neglected or refused to choose appraisers. The court ought to have charged the jury that the levy was void. — Arms vs. Burt, 1 Vt. Rep. 313. — Fox vs. Hills, 1 Con. Rep. 295. — Hinman vs. Leavemmrih, 2 Con. Rep. 244.
    III. It was the duty of the court to charge the jury as to the legal effect of the evidence given on the trial, tending to show the interest which Cranmer Bannister had in the premises claimed by the plaintiff. — Fletcher vs. Howard, 2 Athens' Rep. 117.— Washburn vs. Tracy, 2 Chip. 136. The plaintiff declared for a life estate,but it does not appear,that the requisites of a tenancy by the curtesy, or any other life estate, was shown in testimony to the jury. — 2 Bla. Com. 120, 127. — Probate Act, 1797, sec. 61. Bannister, by the marriage, acquired only a usufruct of the wife’s estate. — Reeve's Bom. R. 32. — 1 Swift's Dig. 26. The levy of the execution is void, as the appraisers considered the interest of Bannister in the premises greater than it was in fact. — Paine vs. Webster et al. 1 Vt. Rep. 133. If the plaintiff shewed any estate in the wife of C. Bannister, it was an estate in common with her brothers and sisters. — Starr vs. Leavitt, 2 Con. Rep. 249, — do. 244, Hinman vs. Leavenworth. The levy was, therefore, void, being by metes and bounds, and not of an undivided part. — Porter vs. Hill, 9 Mass. Rep. 34.
    
      Argument for the plaintiff. — -The principal question, in this case, arises on the admission of the record of the commissioners, setting off to Tryphosa Mann the real estate, for which this action is brought. It is admitted by the case, that the premises in question were a part of the estate of Ephraim Mann, deceased. The record was offered to shew, that Tryphosa Mann, before her marriage, held the premises in severalty, and not as a tenant in common; for her interest was a tenancy in common with the other heirs,until the division. If the record tend to establish the fact, it was properly admitted, and it is believed that the fact is established by the record in three different methods, each of which is sufficient to sustain the verdict»
    1. The record shews a substantial compliance with the statute of 1797, (page 135.J The existence of the warrant, that the committee were sworn, made a division of the estate, and duly made return of their proceedings under their signatures, and that the same was allowed and recorded by the probate court, are ■sufficiently made to appear,
    2. The agreement signed by the heirs is sufficient to establish the right in severalty of Tryphosa Mann. It is conclusive ■among the heirs, and will dispense with the introduction of other testimony : although not sealed, a court of equity will carry it into ■effect. — 2 Stuff’s Dig. 93»
    3. The division and agreement will give her a right in severalty upon common law principles, independent qf the statute. If the heirs held as tenants in common before the division, their interest as such tenants was susceptible of a legal division by parol. The case states the division to have been made in the year 1811, and that the defendantwas in possession of the premises divided and set off to them, at the time of the commencement of this suit. This division and possession will give her an absolute title in severalty; But, whatever may be the rule that would be adopted if the question arose among the heirs, upon an application by them for another division of the estate, still, as it appears, that the heirs acquiesce in the division, this objection cannot be urged by one of them, in a suit brought by their creditor to recover their interest in the premises. Again, if that division did not create an interest in severalty, and if they still are to be considered as tenants In common, the verdict will be sustained ; for the levy will certainly hold what interest the defendant had in the premises, and the verdict, will be amended accordingly, without granting a new trial. 1 Ver. Rep. 133,Paine vs. Webster et al. — 14 Mass. Rep.404, ¿Meins vs. Bean et al. — 2 ¿Likens’ Rep. 144, Warren vs. Hen-shaw, adr. — 1 Con. Rep. 470, Hitchcock vs. Hotchkiss.
    
    The next and only question presented in the case, arises upon a charge as given by the court to the jury. It is here to be observed that the record of the judgment, execution and levy, are not made a part of the case ; and the Court cannot decide upon any fact, but what appears in the exceptions. Nothing appears in the case impeaching the levy, and unless the party making the exceptions sees that the facts are all stated that are necessary, the verdict will be affirmed. — 2 ¿Likens’ Rep. 27, Stearns vs. Warren. But, if the levy was a part of the case, as it was read to the jury by agreement and consent, the charge of the court was correct, “ that it was to be received by them as testimony.” The court was not called upon by the counsel to decide upon a question of law, but to charge the jury, that such facts did, or did not, appear in the levy. Again, the objections made were such as the jury could not take into consideration, but should have been urged to the court against reading the execution and levy to the jury. Those objections having been waived by agreement, and the testimony read, it is a waiver of all objections that can be urged against the verdict. The levy contains a substantial compliance with the statute, sufficient, at least, as against the defendant.— 1 Ver. Rep. 101, Paine vs. Webster, et. als.
    
    After the arguments were through,the court suggested, that they could decide nothing about the levy, as it was not in the case, nor in any way laid before the court: nor about the time when the court were requested to instruct the jury with regard to the levy. In consequence of these suggestions the parties procured the judges of the county court, who were present, to attach to said bill of exceptions, the following addition, as an amendment, or correction, to wit:
    “ The record of the levy to be a part of the case. There was no question made, as to the validity of the levy, in the argument of the cause to the jury; nor were the court requested, by the counsel for the defendant, to charge as to the levy, till after the judge had charged, and submitted the cause to the jury. And, lor that reason, the court neglected to charge upon that point.” :
   Afterwards, during the term, the following opinion of the Court was delivered by .. . ¡

Hutchinson, J.

The Court consider the copies of the probate record of the division of J2. Mann’s estate, offered by the plaintiff and objected to by the defendant, to have been correctly admitted. They were sufficient for the purpose for which they werel offered. Had it been a recent transaction, and depended wholly upon the report of the committee accepted by the probate court, it would have been deficient, without something to show the previous steps, as contended by the defendant’s counsel. In like manner, the written agreement of the heirs, without seal, and without recording in the town clerk’s office, would have been deficient of itself to show a division, as against any person, who had a right to contest the division. But this agreement, such as it was, was completed in the year 1811. It was attached to the division reported by the committee ; refers to and confirms it, as a division of said real estate among the heirs, and was recorded with it in the probate office. This is good and operative asa confirmation of that division in fact, made in the probate office. This agreement was probably substituted for the very matters, the absence of which is now urged as defects in the division ; and it must be considered as a waiver of those defects now urged,and which might then have been supplied,if not thus waived.

But the plaintiff was under no necessity even for this. He claims the right of Bannister, and, if his levy is good and sufficient throughout, he has acquired all the title of Bannister : whether that would be a good title, or not, as against the other heirs, is no interest to Bannister. It forms a good title against him ; and that is sufficient for the plaintiff.

This brings us to the question of the levy; and the case, as now amended, presents that question.

On inspection of the officer’s return of the levy, it appears, that the plaintiff chose one of the appraisers, and the plaintiff’s attorney applied to a justice of tN peace, who appointed the other two appraisers. It does not appear that Bannister, the debtor in the execution, had any notice to appoint any appraiser, or to join, in agreeing upon appraisers, nor, that he neglected or refused to appoint appraisers. Indeed, he could not be said to neglect, till thus notified or called upon for that purpose. This is'so essential a provision of the statute, so essential to the rights of the execution debtor, that it must not be dispensed with. By reason of this defect, the execution and levy give no title to the plaintiff If the plaintiff would perfect any title to the premises under his judgement, he needs to sue out a scire facias, in order to obtain another execution, and proceed regularly in the levy of the same.

There remains jmt another question to be decided. Is this .objection to the levy waived by not being taken in season ? The defendant might have objected to the reading of this copy of the record of the levy to the jury, and then raised the question of its But, the objection not being to the authentication of J . J ° .... the record, but to its want or intrinsic validity, the objection is not waived by letting it pass to the jury. The same question might be raised on argument to the court, upon the subject of what ought to be the charge to the jury.

U. M. Robinson and D. Robinson, jr. for defendant.

Pierpoint Isham, for the plaintiff’.

It would seem, by the original bill of exceptions, that the defendant’s counsel, at some period, requested the county court to instruct the jury that the levy was void, unless the record showed a compliance with the statute. The original case closes, without showing that the court gave any such instructions upon this point, as the defendant might legally claim, if he asserted his claim in due season. The amendment of the case assigns a reason for this, to wit: that the request was not made by the defendant’s counsel, till after the court had submitted the cause to the jury. This was not in due season to suggest an entire new question, on which the whole cause might turn ; and it was not error in the court, to leave the question as they did, at that stage of the trial. It would not be justice to the plaintiff, for this court to treat that as error, and reverse the judgement; and thereby subject the plaintiff to the loss and payment of costs, during a period of controversy, that might have been prevented by raising this objection during the argument, and before the cause was submitted to the jury.

We are unwilling to have the cause come to a crisis, without a decision upon its real merits; and as there appears to have been some mistake or oversight, on the trial, and the counsel are not now agreed as to the facts that transpired at the trial, with regard to this levy, we are disposed to let the cause rest for the present, with leave to the defendant to file a motion before this court for a new trial, on the ground of the surprise, of which he seems disposed to complain. If such a motion is filed, there may be affidavits on both sides, and, possibly, a new trial may be granted on such terms, as will do ample justice with regard to back costs, and not let the whole merits of the defence be sacrificed, through any mistake • of counsel, or any misrecollection of the exact order of time, in which the several objections were urged.

Upon this suggestion from the court, the defendant filed his motion for a new trial; and both parties filed affidavits relative to the question ; and, upon a hearing, a new trial was granted, on terms, that the defendant take no cost for this term, nor for the last term in the county court, should he finally recover.  