
    George Tate and Another versus John Anderson.
    Where, upon an execution, the appraisers and sheriff returned an extent of an undivided part of the real estate of which the father of the judgment debtor died seised, being in the towns of W. and G., referring, for the description thereof, to the inventory of the said estate, the return was held void, and the title to the estate not affected by it
    Debt on a judgment of this Court, October term, 1807, for 299 dollars 2 cents.
    The defendant pleads in bar that an execution duly issued on said judgment, and was delivered to a deputy sheriff of this county, who extended the same upon certain real estate, the property of the said Anderson, caused the same to be duly appraised, and delivered seisin and possession thereof to the judgment creditors, the present plaintiffs, who received seisin and possession thereof, in full satisfaction of the said execution, and the charges of levying the same.
    The plea then sets forth the execution, with the certificate of the justice who administered the proper oath to the appraisers,' the appraisement, the officer’s return, and the creditors’ acknowledgment of satisfaction thereon, in heec. verba.
    
    The appraisement, which follows the justice’s certificate, is as follows, viz:— t
    “ Cumberland, ss. We, the above named, having been sworn as above, have appraised, and do hereby appraise, the one undivided fourth part of the one undivided eighth part of the whole real estate, with the privileges and appurtenances thereto belonging, which the late Colonel Edward Anderson, of Windham, in said county, deceased, died seised and possessed of; the said whole estate being in said town of Windham, and in the town of Gray, 
      in said county, reference for the description of said estate being had to the inventory of the same ; * the said real estate having been shown to us by George Tate and Charles Johnson, the creditors, the said fourth part being the estate of the within-named John Anderson, to satisfy the within execution ; allowance in the appraisal of said one fourth part being made for the encumbrance of the widow Mary Anderson’s thirds in said estate. Dated at Windham, 13th November, 1807,” and signed by the three appraisers.
    The officer certifies the choice of the appraisers, and their having appraised the “ estate above mentioned,” at the sum of 319 dollars 25 cents, and adds, “ I have this day, agreeable to law, delivered possession and seisin of the said John Anderson’s estate to them, the said George Tate and Charles Johnson, the creditors, to have and to hold the same, in common with the heirs of Edward Anderson, with the encumbrance of Mary Anderson, widow’s dower, to them, the said George Tate and Charles Johnson, their heirs and assigns forever, in full satisfaction, <fcc.,and have left them in quiet possession thereof. I do, therefore, return this execution fully satisfied.”
    Then follows an acknowledgment of receiving possession of the same estate, by the creditors, in full satisfaction, &c.
    To this plea in bar the plaintiffs demur, and assign sundry causes of demurrer; among which is the following: —
    “ Because there is no averment or allegation, in said plea, that the real estate therein said to be set off in satisfaction of said execution, was set out by metes and bounds; nor is there, in said plea alleged, any certain description of any real estate whatever, nor any description of any real estate which, by any reference in said plea set forth, can be made certain, as by law there ought to have been.”
    The defendant joins in demurrer.
    
      Longfellow for the defendant.
    Here is a reference to an inventory of an estate, which is of record in the probate office, and by which the boundaries may be ascertained. *The number of the lots will be shown, and that is sufficient.
    
      Id certum est quad certum reddi potest.
    
    
      Hopkins, contra.
    
    The law requires no such inventory to be recorded in the probate office. If such a paper has crept into that office, it may be taken away at any time; and then even this slender aid to the return will fail.
   The opinion of the Court, the action being continued nisi for advisement, was delivered at an adjournment of the last March term in Suffolk, by

Parker, J.

This is debt on judgment, and the plea m bar specially sets forth a satisfaction, by alleging an execution issued upon the judgment, and a levy thereof upon an undivided portion of certain lands descended to the judgment debtor from his father, lying in Windham and Gray, in the county of Cumberland; into possession of which the plaintiffs were put by the sheriff, who re turned the execution satisfied. To this plea there is a demurrer, with several special causes assigned, most of which apply to supposed defects in the plea, in not alleging certain facts necessary to make the levy valid. But as the execution, and the .doings thereon by the officer, are set forth in hcec verba, and are made a part of the plea, and, as- it sufficiently appears that the defects particularly relied upon in the special causes assigned, do not exist, we are to consider whether any substantial defects exist, by reason of which the land levied upon did not pass to the plaintiffs ; for if that should be the case, then the plea is bad, in not showing a satisfaction of the judgment.

And we are all of opinion that the proceedings under the execu tian are so defective, that the plaintiffs did not thereby acquire any title to the land set off, but that the title still remains in the judgment debtor.

The statute of 1783, c. 57, § 2, requires that the land to be set off shall be described by metes and bounds, and shall be appraised. There is here no description of the land whatever, but only a cer tain undivided portion of the defendant’s inheritance is said to be levied on; and the only way of ascertaining where the land is, is to examine * the inventory of his father’s estate, to which reference is made in the return of the appraisers and of the sheriff,

Whether such inventory contains a true description of the parcels of land belonging to the defendant’s father, does not appear, .as it is not made part of the case. Neither does it appear that the land was ever appraised, or that the appraisers or the sheriff entered upon any of the land, to appraise or to set off the same.

It would seem that the sheriff, understanding that the debtor’s father died seised of certain real estate, and that one fourth part of the same had descended to the debtor, had caused that part to be set off to the creditors, to satisfy the debt, without entering upon any part of the land, or causing the appraisers to enter upon it, that they might make a just estimate of its value. This loose proceeding is not a compliance with the statute, and the title to the estate was not affected by it. The consequence is, that the defendant is the owner of his inheritance, as before, and that the judgment declared on remains in force, unaffected by any thing done under the execution.

jDefendant’s plea in bar adjudged bad. 
      
      
         [In Boylston vs. Carver, (11 Mass. Rep. 515,) it was held that a reference in the return of the officer to deeds of the same land on record, for a description, in which deeds there was a sufficient description by metes and bounds, was sufficiently certain. And see Cutting vs. Rockwood, (2 Pick. 443,) when returns on several executions of a delivery of seisin “ of 5 acres and 100 rods of land, of an average value, lying in common and undivided with Jonathan Bachelor, in the following form, &c., containing 122 acres, and-an equal proportion of the buildings standing thereon; said farm bounded, &c., at the same, dec.,” were held to be good. See Jackson, ex dem. Carman, vs. Roosevelt, 13 Johns. Rep. Jackson, ex dem. Livingston, vs. Delancey, 13 Johns. Rep 537.—Ed.]
     