
    William Gooch, Executor, &c., versus Hannah Atkins
    A widow’s right to have dower assigned to her in land is not subject to be taken in execution.
    Where a judgment creditor caused his execution to be extended, by mistake, upon land not liable to be levied upon, and directed the officer not to return the execution, it was holden that an action of debt lay for him upon the judgment, without an eviction.
    This was an action of debt upon a judgment; to which the defendant pleaded payment in full satisfaction; on which issue was joined. She also pleaded that an execution, which was issued on the judgment, had been duly levied on certain real estate, and returned fully satisfied, setting forth particularly the execution, and the officer’s return thereon.
    By this return it appeared that the execution was levied, in part, on a certain dwelling-house and land, appraised at 4700 dollars, of which the defendant was seised in fee, and concerning which there was no question in this action ; and for the residue, “ on the dower which the said Hannah Atkins hath in the brick dwelling-house situate, &c., in which the said Hannah Atkins now dwells, together with all the rights and privileges belonging to the dower of the said Hannah Atkins in the said estate; ” which last was appraised at 1047 dollars 84 cents.
    * To this the plaintiff replied that, at the time of the supposed levy, the defendant was not endowed, and had not had any estate of dower assigned her in the last-mentioned dwelling-house, as was supposed at the time of the levy; that the plaintiff, having discovered this before the return day of the execution, directed the officer not to return the same; and that it never was returned into the clerk’s office; and so the execution was nol fully satisfied, &c.
    In the rejoinder, the defendant averred that the execution was fully satisfied, and tendered an issue to the country; to which there was a demurrer and joinder.
    On the trial of the issue of fact, joined as aforesaid, which was had before Wilde, J., at the last February term in this county, the same facts appeared which are set forth in the special plea and replication above mentioned; and the cause was argued upon these facts, at the last March term in Suffolk, by Bigelow for the plaintiff, and Whitman for the defendant.
    
      Bigelow.
    
    Debt lies in this case, as well as scire facias. 
       There is no need of showing an eviction in this case. The creditor discovering that his debtor had no such estate in the land, as he could extend his execution upon, prevented the return of the ' execution. 
    
    If the defendant had had an estate in dower in the brick house, the rents and profits should have been levied upon, and assigned to, the creditor, until they should have discharged his debt, instead of setting off the land by metes and bounds. It does not appear, from the return of the execution, whether the supposed dower embraced the whole or a part only of the dwelling-house. . But the case finds that the defendant had dower in no part thereof. The execution is therefore unsatisfied in the sum of 1047 dollars 84 cents, which sum the plaintiff claims in this action, with interest.
    
      Whitman.
    
    In the case of Ladd. vs. Blunt, the levy of the execution was never completed; and the reasoning of the court in that case is entirely against the principles on which the present action must be supported. * This is not the case, in which debt will lie by the statute, which provides only for the single mistake of an execution levied on lands not belonging to the debtor. 
      Scire facias alone will lie. 
    
    But the defendant contends that it was the plaintiff’s own folly that caused his misfortune, and the law furnishes him no remedy. If his neglecting to return his execution into the clerk’s office, and this is the whole of the plaintiff’s case, will give him an action on the judgment, a door will be opened for a very fraudulent practice. Whenever a judgment creditor is dissatisfied with the value set upon land by appraisers, he has only to keep the execution in his pocket, and may then harass his debtor with an action of debt.
    The defendant was entitled to dower in this dwelling-house. That right was subject to be taken in execution ; and the creditor might have procured an assignment of it in the dowager’s name. If it be not so, a widow has it in her power to defraud her creditors, by neglecting to have dower assigned her.
    
      Bigelow, in reply.
    The case shows that the defendant had not the estate in the dwelling-house which she was believed to have. The execution was then levied by mistake, which is the precise case contemplated in the statute. The case of Tate & Al. vs. Anderson 
       is a sufficient authority to support the present action.
    
      
       12 Mass. Rep. 195, Hatch vs. Green. — Ibid. 4, Commonwealth vs Green
      
    
    
      
       4 Mass. Rep. 402, Ladd vs. Blunt.
      
    
    
      
      
        Stat. 1785, c. 6.
    
    
      
       2 Mod. 41. — 7 Mod. 62. — 1 Esp. Dig. 214, 240.
    
    
      
       9 Mass. Rep. 92.
    
   Per Curiam.

It was decided, in the case of Hatch vs. Green, that a judgment creditor, who had been evicted of part of the land taken in execution, might maintain an action of debt on the judgment for the appraised value of that part. The present case is stronger for the plaintiff, inasmuch as the plaintiff has never taken any thing by force of this supposed levy on the dower, as it is called; and it would be absurd to require that he should enter, when he knows that his title is defective, and that he should be evicted by a legal process, in order to maintain this action of debt on the judgment.

The only question therefore is, whether the defendant had any estate in the second parcel of land mentioned in the return; for if not, the execution and the * proceedings under it are wholly ineffectual as to that part, and the judgment remains unsatisfied for the sum at which it was appraised.

The return as to this point appears somewhat ambiguous. If it should be construed to mean that the estate appraised was the defendant’s rihgt to have her dower assigned and set off in the. dwelling-house, it is void and ineffectual; because such a right cannot be taken in execution. If, on the other hand, it was understood at that time, as has been suggested in the argument, that this house had been assigned to the defendant as her dower, and if her estate as tenant in dower was intended to be appraised and taken on the execution, then it is ineffectual, because she had no such estate.

If the mistake had proceeded further, and the plaintiff, believing that the defendant was tenant in dower, had taken possession of the land, and continued to hold it, the case would present a different question. But it appears that he has never had possession; and by the pleadings in this action he would be estopped from ever claiming any estate in the land, under the levy of the execution. The proceedings, therefore, under the execution, as to this piece of land, are defeated and void.

As the plaintiff has never received any rents and profits from this land, he is entitled to interest, and must have judgment on the verdict for the sum of 1047 dollars 84 cents, with interest from the time of rendering the judgment.  