¶1Had the defendants, Paul and Elijah Kin ney, taken a mortgage to secure themselves against their liabil ity, as they should have done, the payment of the debt, by thi levy upon the land, would have discharged their claim : ant they ought not to be in a better situation, by taking an absoluti deed, than if it had been conditional. The very fact, that tin deed was absolute, when it was uncertain whether they woult ever pay the debt for which it was given, was strong evidence that the deed was fraudulent. It was an absolute deed, iron a father to his sons, on.the eve of an avowed insolvency, with out any security from them, that they would pay the debt and the debt was finally paid, by part of this very land. Tb evidence admitted, certainly, tended to shew, that as the de fendants, Paul and Elijah, had suffered nothing, they couli suffer nothing in consequence of this suretyship ; and unde the circumstances, they have had all the advantages from thi deed, they could be entitled to ; and ought not, therefore, t have a new trial, on that account.
¶2The defendants also claim, that the plaintiff has no title, hi levy being void ; and they claim it is invalid, because the off cer in his return, avers, that he levied upon a farm estimated a 120 acres, which was appraised at 7 dollars, 87 cents, an acre of which he sets off 47 acres and 90 rods in satisfaction of th execution ; and that it does not appear, that this 47 acres wa appraised, except as it was included in the general appraise ment of the farm.
¶3The statute makes it the duty of the officer to levy upon th lands, tenements, or real estate of the debtor; and that th same shall be appraised according to its true value; and the o *407licor, thereupon, shall set out so much of the lands as may be . . ’ . , , , . , Sufficient, at the appraisement, to pay the debt and charges, Sufficient; if not, so much as there may be. The officer has fiere pursued the very words of the statute ; but it is claimed, that he has not pursued it according to its intent; that h,e has levied upon much more land, than was necessary to satisfy the execution ; much more than he set off.
¶4It must be observed, that we have no facts to shew7 what Was the quantity of land in the farm. We know that it was estimated at J20 acres; but when we are called upon to declare a levy void, because too much was levied upon to present the appraisers, we ought to have something more than an estimate of the quantity, although that estimate was made by the officer himself. Here is an utter uncertainty, what number of acres the farm contained. Bui it does appear, from the whole return, that there was more levied upon than was set off to satisfy the execution ; as the return shews, that 47 acres and 90 rods thereof, were set off to satisfy said execution.
¶5The question then occurs, is the naked fact, that more, much more, as estimated, was levied upon and appraised, than was set off, sufficient to render the levy invalid, unless it appears That there was a re-appraisement of the particular land set off.
¶6I am not prepared for that result. If it is said, that more may render the levy void, I ask, how much more ? Will one acre, or ten, or twenty ? Can any certain rule be established, by which we are to measure the quantity of land lhat the officer must levy upon and have appraised ? It could not be expected he could take the exact quantity, any moré an he could take the exact quantity of goods; unless he uld be supposed to know the appraisers’ opinion beforehand, hat then -was his duty ? He is, in this case, as in case of a ;vy upon personal property, to conduct fairly, with a due re-rd to the rights of the debtor, and the convenience of the creditor ; keeping in mind, that the motives which influenced him, and the tendency of his conduct, may all be in vestigated, by a jury of his country.
¶7This was the principle adopted in Benjamin k al. v. Hathaway, 3 Conn. Rep. 528. 533. and is the only practicable restriction upon certain discretionary powers, which must somimes necessarily be vested in an executive officer.
¶8It is asked, is it to be presumed, that each acre of a farm *408containing 120 acres, is of equal value : and it is said, unless it , , . 1 . „rl ’ . . „ so, this cannot be a fair transaction. When an appraisal oi a quantity of land is made with a view of setting off a part, unless the several acres are nearly of equal value, this may not be a fair mode of appraisal. But when the quantity is unknown, except by estimation, and the farm is appraised at a certain sum by the acre, in the absence of all proof to the contrary, it may fairly be presumed, that the average value pe|f acre of the whole, is also the average value of one half, oi even of one third.
¶9If there is disparity in the value, this may be shewn, fori he purpose of shewing the object of the officer or creditor; and iff it could be shown, that gross injustice was done to the debi.ur, or that the object was, by the forms of proceedings, to gain an undue advantage, such an experiment would never be sanctioned by intelligent men. But it would be too much, to i- .\, that the levy was void, from the mere fact, that the quantity? levied upon, and appraised by the acre, was greater than that? set off.
¶10The proper way, doubtless, is, for the officer to levy upon what he supposes enough to satisfy the execution — the whole? tract, or less ; to get the opinion of the appraisers ; then, if it is more than he needs, levy on so much, as, in the opinion of the appraisers, will satisfy the execution ; make his return according to the last levy, and let their certificate correspond with that return. From the whole of this return, I think, that was done here; but as that is somewhat doubtful, I have formed my opinion upon the case, as claimed by the. defendants ; and I think, that admitting the return to be what the defendants ; claim it to be, an appraisement of the whole farm, that simple ? fact, unaccompanied with any proof of inequality or unfairness, is not sufficient to render the levy void; and therefore, 1 would advise that there be no new trial.
¶11New trial not to be granted.