#### Charles Ramsdell *versus*Rebecca Creasey.

A creditor of a deceased person recovered judgment, and levied an execution oil the land of the deceased; before which the estate was represented insolvent, and afterwards proved to be so: the creditor filed her claim with the commissioners, had it allowed, and received of the administrator nearly the whole of the dividend awarded her. Her title to the land was sustained, (a)

This was a petition for partition, in which *Ramsdell,*the petitioner, alleged that he was seised of five eighth parts of two third parts *179of the land described in the petition, in common with certain persons unknown to him. At some former term of the court in this county, notice was ordered to be given in some public newspaper, pursuant to the provisions of the statute of 1783, c. 41, § 3, and, no person appearing, upon proof of the notice and proclamation made, to contest the petitioner’s claim, judgment was rendered that partition be made, and commissioners were appointed to make the same, as prayed for. The commissioners made their return at the last May term in this county, when *Rebecca Creasey*came into court, claiming to be seised of two of the five eighth parts to which the petitioner alleges a title, and averring that she had no notice of the petition pending until after the preceding term, and thereupon praying to be admitted to contest the petitioner’s right.

*By the Court.*The color of title, and her suggestions against the petition, now offered on the part of *Rebecca Creasey,*must be attended to. The mode of notice provided * by [ ** 171*] the statute in cases of this kind is imperfect; and although necessary where partition is prayed, and the petitioner has no power of naming his co-tenants, yet every indulgence and caution is to be used in the admission of respondents, who ought not to be precluded until the final judgment.

The respondent, now offering herself, may be secured in her rights *de bene esse,*without immediately vacating the proceedings already had. The default, the interlocutory judgment, the appointment of commissioners and their return, may stand until a trial shall have been had on the pretensions of Mrs. *Creasey.*If she proves herself entitled, and that the petitioner is not entitled, or that he is entitled to a less share than his judgment for partition supposes, then the interlocutory judgment, and the commission and return, are to be vacated, and a judgment entered according to the truth of the case.

An issue being joined between the parties, the same was tried before *Thatcher,*J., at the last September term in this county.

In support of the petitioner’s right, it was proved that the part of the land now in dispute was formerly the property of *William Haley,*deceased; that *Nathaniel Haley,*his administrator, was, at the August term of the Court of Common Pleas for this county, in the year 1807, licensed to make sale of all the real estate of said deceased for the payment of debts, &c.; that he was, on the 3d *180day of February, 1808, duly sworn; on the 10th day of March following gave bond as by law required; and, after having given notice according to law of the intended sale of said estate, the said two eighths of two thirds were sold to the petitioner on the 31st of March, 1808, and a deed thereof was given to the petitioner by the said administrator.

The respondent produced the copy of a judgment recovered by her against the estate of said deceased, before the [ * 172 ] * Supreme Judicial Court in this county, October term, 1804, for 186 dollars 93 cents, damage, and costs of suit, taxed at 64 dollars 68 cents; also a copy of an execution duly issued on said judgment June 22, 1805, which, on the 22d of the ensuing July, was duly levied on the said two eighth parts of two thirds of said land; and the execution and return were duly recorded It further appeared, that, on the 26th of February, 1805, the said administrator duly represented the estate of said deceased insolvent; that he afterwards settled two accounts of administration with the judge of probate, who, on the 29th of November, 1808, issued his warrant *to the*said administrator, stating that the debts allowed and due from said estate amounted to 655 dollars 6 cents, and the estate amounted to but 319 dollars 95 cents, and directing the administrator (among other payments) to pay to the said *Creasey*the sum of 123 dollars 27 cents 9 mills, in full of her claim of 251 dollars 61 cents, which had been by her presented to the commissioners upon said estate, and by them allowed. And it further appeared, that the respondent had received of the said administrator 121 dollars 61 cents, in part of her said dividend; and that her attorney, at the time of levying said execution, knew of the said representation of insolvency:

A verdict was taken for the petitioner; and if the Court should be of opinion, upon the foregoing facts, that the petitioner was entitled to maintain said petition as to the said two eighth parts of two thirds of said land, the verdict was to stand,. and judgment accordingly; otherwise the verdict was .to be so amended as to comport with the opinion of the Court, and the respondent to have judgment for her costs.

The action stood continued to this term for argument; and now *Wilde,*for the respondent, insisted that her title under the levy of the execution was legally maintained. The [ * 173 *\ **statute of 1783, c. 32, <§> 7, gave her this remedy, and would protect her in it, notwithstanding the posterior representation of insolvency by the administrator. It was in his power to have prevented the judgment. If the other creditors to the estate suffer by his laches, their remedy is good against him *181It is true that, by the statute of 1783, c. 59, <§> 3, attachments of estate made during the life of the debtor are avoided by the representation of insolvency, and a commission thereupon issuing; and the statute of 1784, c. 2, declares that no action, with certain exceptions, shall be sustained against an executor or administrator after a representation of insolvency; but neither of these, nor any other statute, goes to vacate a judgment duly rendered, or an execution properly levied. .

As to the objection arising from the respondent’s having received a partial payment of the dividend awarded her from the administrator, it is acknowledged that she will be held to restore it, if her title to this land is sustained.

*Mellen,*for the petitioner.

The interlocutory judgment being yet subsisting, the question now before the Court is rather an appeal to their discretion, than a contest concerning the legal rights of the parties. If the Court perceive that it would be inequitable to set aside that judgment, in order to let in the respondent’s claim, the circumstances of the case enable them to enforce the judgment already rendered. It is apparent, from the respondent’s pursuing her claim under the commission of insolvency, and receiving her dividend, that sire had no confidence in her title under her judgment and execution. By this conduct she has, in fact, waived her right to the land, and she ought to be bound by her own voluntary act. It was fraudulent in her to take two satisfactions for the same claim ; and yet it is doubtful whether she can be compelled by action at law to refund the money she has received, since it was received under a valid decree of the Probate Court.

*Wilde,*in reply.

The equitable circumstances were fully considered by the Court upon the respondent’s application *to be admitted to defend. If, upon the facts found, [ * 174 j the Court are satisfied that the petitioner could not recover this land in an action against the respondent, they are then bound to amend the verdict in her favor. As to her having waived her right, she could not pass a vested title to real estate, or waive it by parole. If an action will not lie to recover back the money paid her, much less can she be divested of a vested title to land without deed. If there was any fraud, it was in receiving the dividend, not in levying the execution on the land.

(a)

 [It appears that the representation of insolvency was made *before the issuing of the*execution, *and nearly five months before the levy.*A commission of insolvency had undoubtedly issued. And it does not appear that the administrator had failed to settle his accounts according to the statute. It therefore would seem, that, according to the spirit of the statutes of 1783, c. 59, § 3, and 1784, c. 2, the proceedings under the execution should have been considered, either as void, or at least as voidable, by *audita querela, or*otherwise; and, under such circumstances, the respondent ought not to nave been let in to defend. Apparently she had no equity on her side. She had submitted her demand to the commissioners, and received a dividend upon it *179And the case does not state any neglect ot the administrator, in obtaining leave to sell real estate for the payment of the debts. In fact, it does not appear that the levy of the execution was any thing better than a trick, to obtain payment in full from an insolvent estate. The law derives no credit from countenancing such a trick. — Ed J

*By the Court.*

The respondent has exhibited a legal title to the land claimed by her. It is the general right of a creditor recovering judgment against the *effects*of his deceased debtor, to extend his execution upon the lands of the deceased, (a) except in certain *182cases mentioned in our statutes, of which this was not one. Nor is there any mischief to be apprehended to the other creditors, if the administrator is faithful to iiis trust. If he is otherwise, the creditors have their remedy against him. It is by no means proper to take into consideration facts arising after an estate has once lawfully vested, for the purpose of defeating such estate. Yet all the objection to the respondent’s claim arises out of her conduct after the extent of her execution. This conduct of hers cannot operate as a waiver of a right which had regularly vested in her; if such were the effect, it would avoid the estate in the hands of a *bonei fide*purchaser from her. Such a construction cannot be admitted. It has been urged upon us, that the case, under the circumstances of it, was open to equitable considerations; but the admitting her to defend in the suit gave her all legal rights, and we cannot now deprive her of them. The verdict is to be so altered, that the petitioner shall have judgment that three eighth parts of the two thirds be set off to him. The respondent has established her claim to the two eighth parts.

ADDITIONAL NOTE.

[See *Towle*vs. *Bannister,*16 *Pick.*255. — F. H.]

(a)

*[Prescott*vs. *Tarbell & Al.,*1 *Mass Rep.*204. — *Gore*vs. Brazier, 3 *Mass*503. — vs. 4 *Mass.*150. — *Drinkioater*vs. *1824 *Mass. Rep.*354. — *Bigelow*vs. *Jones,*4 *Mass. Rep.*512. — *Boylston*vs. *Carver,*4 *Mass. Rep.*598. — *Mitchell*vs. *Lunt,*4 *Mass. Rep.*464. — *Scott*vs. *Hancock,*13 *Mass, Rep.*162. — Ed.]