majority">Tenney, J.

— The jury were instructed, that -if the tenant was the owner of the entire farm, at the time of the levy, the levy upon an undivided portion was-illegal and invalid. This instruction was in accordance with the provision of E. S., c. 94, § § 3 and 4.

The jury were further instructed, that1 if the tenant owned an undivided portion, greater than that on which the levy was made, it would be legal, and the demandant would be entitled to their verdict. By § 11, of the chapter of the statute referred to, when the • debtor is the owner of -such an interest as the instruction supposes, the whole or a part of his interest, as may be required to satisfy the execution may be taken, and thereafter held in common with the co-tenants.

The whole of the debtor’s interest An,the premises.shall *212pass by the levy, unless it be larger than the estate mentioned in the appraiser’s description. R. S., c. 94, § 10. The levy can pass no greater estate than it describes; and if it be less than that to which the debtor has title, it is restricted to the description. And it being in nowise injurious to the debtor, that an estate less than he owned should betaken by the levy, it will be effectual. There may be questions, as to the extent of the debtor’s interest, and the creditor may not wish to involve himself in disputes and litigation, and therefore limit his extent, that it may be free from doubt in this respect.

Another question involved in the instructions, is whether the omission to deduct the mortgage debt, from the estimated value of the premises, it being known to the creditor, will render the levy invalid. R. S., c. 94, § 31. The provision refers to a levy upon the right of redeeming from a mortgage, and not to a case where the creditor is willing to treat the land as that of the debtor, unaffected by the mortgage. He may choose to do this on the ground, that the mortgage is fraudulent and invalid as against creditors-Arid it has been held, that if the creditor choose to. take the interest of his debtor, subject to the mortgage, without allowing any thing for the debt, he may do so. Cummings v. Wyman, 10 Mass. 464; White v. Bond, 16 Mass. 400; Litchfield v. Cudworth, 15 Pick. 23.

The appraisers did not estimate the value of the right of redeeming the portion of land owned by the debtor, but the whole is appraised subject to the incumbrance, and without any deduction therefor, and the levy is valid between the debtor and creditor notwithstanding the mortgage given by the former. Judgment on the verdict.

Rice and Cutting, J. J., concurred.

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