#### * Henry Chapman *versus*William Gray.

A lease for years, although the term thereby granted be for less than seven years, yet being made to commence at a future day, if it is to endure more than seven years *from*the making thereof is within the requirements of the *Slat.*1783, c. 37, *§*4, concerning the recording of deeds.

A, being possessed of an estate for life in one third of certain land, &c., and of a term for years in the other two thirds thereof, B, a creditor of A, levied his execution upon an undivided moiety of all A’s right, title, and interest, in the land, in the manner prescribed by law for extending executions on real estate, and it was hoi den thatB took one sixth part of the premises only ; no part of the term passing by the levy.

B’s entering under his levy, claiming to hold a moiety of the land, was an ouster of the assignee of A’s estate for life and years, for which he was entitled to his action of ejectment.

This was an action of ejectment, to recover the possession of certain real estate in *Boston;*and it was submitted to the decision of the Court upon the following facts agreed by the parties: —

The demanded premises were a part of the real estate of which *John Gray*died seised; being the mansion-house, and land adjoining, in *Summer*Street, *Boston,*and the whole of his real estate in the county of *Suffolk.*By his last will he devised his real estate as follows: “ I give, bequeath, and devise, to my dear and beloved wife, *Mary,*one third part of all my real estate, for and during her natural life ; she keeping and maintaining the same in good repair.” And afterwards: “ It is my will, also, that my said wife occupy and enjoy, free of rent and charge, the dwelling-house fronting on *Summer*Street, in said *Boston,*being the same I now live in, during the minority of my son herein named, if she so long remain unmarried.”

The widow of the said *Gray,*being in possession of the premises, although her dower in the estate of her said husband was never assigned to her, afterwards married *Benjamin Parsons,*Esq., who thereupon entered into the premises in her right. On the 7th of January, 1812, the said *Parsons*and his wife, by an indenture of that date, leased the premises to *Israel Thorndike,*Esq., for a gross sum then or before paid, except the payment of the rent of one cent annually, to hold for the term of four years and nine months from the 1st day of the same January. On the 21st day of the same January, the said *Parsons,*by indenture, leased the said premises to the plaintiff *Chapman,*for a consideration then or before wholly paid in the manner stated in the lease, to hold, from the determination of the said lease to *Thorndike,** until *John H. Gray,*the son of the said *John Gray,*deceased, should be twenty-one years of age; which will be on the 17th of August, 1823.

*392On the 26th of December, 1813, the defendant *Gray,*having a demand against the said *Parsons,*attached the premises, the following being the return of the officer, *viz.:*“ I attached all the right, title, and interest, and right to the rents and profits, of the within-named *Benjamin Parsons,*in and to all that real estate, situate in *Boston,*and bounded,” *&c.,*describing the said premises.

On the 8th of March, 1816, the lease from *Parsons*to the plaintiff was recorded.

The action of *Gray*against *Parsons*was entered at the Court ol Common Pleas, and at the first term thereof the said *Parsons*was defaulted, and the action, on motion of said Gray. was continued from term to term, until the October term of said Court, in the year 1816, at which term judgment was rendered in the said action.

The lease to *Thorndike*expiring on the 1st of October, 1816, the plaintiff *Chapman*then entered into possession of the premises, and the said *Thorndike*took a lease of them from him.

On the 29th of October, 1816, the said *Gray*levied his execution against the said *Parsons*upon the premises; on which execution the officer, after stating the appointment of the appraisers, sets out at large, that “certain real estate, consisting of lands and tenements situate on *Summer*Street in said *Boston,*having been shown to the appraisers, by said *Gray,*as the property of said *Parsons,*and which said *Parsons*is entitled to hold and enjoy as the property of his wife, *Mao-y,*as follows, *viz.,*one third part thereof as tenant in common with one *John H. Gray,*and his heirs, from and after the 17th day of August, 1823, during the joint lives of the said *Parsons*and his wife, and the whole of said estate until the said 17th of August, 1823, provided the said *Parsons*and his wife should so long live ;

and which said lands and tenements are described as follows, **viz.,”*(then describing them by metes and bounds correctly,) “ and they, the said appraisers, have set out *o'ie undivided moiety of all the right, title, and interest, of said. Benjamin Parsons*to the real estate above described, to the said *B illiam Gray,*his heirs and assigns; which they have appraised at the sum of 3524 dollars, in full satisfaction of this execution and all fees; — wherefore I have, on this 29th day of October, *A. D.*1816, levied and extended the said judgment and execution on the land and premises appraised and set out as aforesaid, and have delivered seisin and possession of the same to the said *William Gray,*in full satisfaction and discharge of said execution and all fees; to have and to hold all the said lands and premises, appraised and set off as aforesaid, to him, the said *William Gray,*his heirs and assigns, to his and their use and behoof, so long, and in as full and ample manner, as the said *Parsons*would have been entitled thereto *393and I do return this execution fully satisfied.” And there was a receipt of the same date, on said execution, by the said *Gray,*of seisin, &c.; which said return has been duly recorded according to law.

During the terms of the aforesaid leases, no annual rents or profits were receivable by said *Parsons*from the lessees, except in manner aforesaid.

If, upon this statement of facts, the Court should be of opinion that the plaintiff is entitled to recover in this action, the defendant was to be defaulted, and judgment was to be rendered for the plaintiff, for possession of the demanded premises, and costs. But if the Court should be of opinion that the title of the defendant to said moiety is good against the plaintiff, then the plaintiff was to become nonsuit, and the defendant to recover his costs. And if the Court should be of opinion that the said levy is in part void, a nonsuit or default was to be entered, and such judgment rendered thereon as the law requires; the defendant not waiving any objection to the form of action.

** Hubbard,*for the plaintiff.

The lease from *Parsons*to the plaintiff being for a less term than seven years, it was not necessary, within the requirements of the statute of 1783, c. 37, § 4, to record it, to make it good and effectual in law against the effect of the defendant’s attachment.

There was no estate in *Parsons*liable to attachment. He had parted with his whole estate for years. It is true that his wife had a right, under Mr. *Gray’s*will, to demand one third of the demanded premises, to hold during her life. But as there was estate in other places, from which she might take the whole of the third part devised to her, she could not be considered as seised of this particular property, until she had made her election. Her interest under the devise amounted to no more than a right to dower; which is not subject to attachment, until it has been assigned. (1) “ It is a rule of law that, to give a thing to the person to whom the law gives it, and in the same manner, is as if it had not been given.” (2) And it is plain, from the whole will, that it was not in the testator’s intention that she should take a third of the mansion-house.

But, admitting that Mrs. *Parsons*had a freehold estate in one third of the demanded premises, she had but a chattel interest in the rest; and the levy was not properly levied on this latter, which should have been sold as personal property. (3) The levy, then, being bad for a part, was bad for the whole. As to the freehold in the one third, the execution should have been extended on the lent* *394and profits. (4) This method of levying affects the debtor, as to the right of redemption ; for it cannot be known at what sum the third part was appraised. If the defendant would avail himself of his levy for the one third, he should have disclaimed for the other two thirds. The plaintiff claims, in this action, the rents and profits of the two thirds as damages. (5)

*J. T. Austin*and *F. Gray,*for the defendant.

The statute of 1 *83, c. 37, declares that no lease for more than *seven years from the making thereof,*shall be effectual without recording. * The lease to the plaintiff was to continue in force more than seven years from the making thereof, although the term thereby created was to be of a less duration. To pass the estate, the wife should have joined in the conveyance.

The estate of Mrs. *Parsons,*in the third part devised to her for life, is different from an estate in dower. For, under the will, she had an estate immediately on the death of the testator; which is not the case in dower. The estate for years, in one third part of the premises, was merged in the estate for life; and, as to the other two thirds, the estate for years remained.

Execution may be extended on terms for years, as on real estate. (6) The phrase *real estate,*in the statute of 1783, c. 57, intends the land held by the judgment debtor, and not the nature of his interest in the land; and it will be found to be so used in many of the provincial acts, and of the statutes of the commonwealth. If a term for years may be sold as a chattel, it does not follow that the land so holden may not be extended upon as real estate. (7) It is much more convenient that terms for years should be thus levied upon ; otherwise long terms, of almost equal value with a fee, may be sold for a trifling debt; and there is no right of redemption remaining in the debtor. If such terms are sold as chattels, the statute for the registering of deeds, &c., will be avoided ; for it requires a record of such sale only in the clerk’s office, to which the execution is returnable; while a lease for seven years, and perhaps ¿very assignment of such lease, must also be recorded in the registry of deeds in the county where the lands lie.

The defendant, having entered under a lawful title, cannot be an ejector. As tenant in common with the plaintiff, he might lawfully possess the whole. Upon the plaintiff’s own showing, the defendant has only claimed more than of right belonged to him. The taking of the whole profits is no ouster. The plaintiff then has mistaken *395his remedy. He should have brought his action of account, or assumpsit, *for the rent.

Judgment and execution, in this action, would but give him the possession, and this he already has. The defendant, being, without question, entitled to a portion, cannot be lawfully evicted by the sheriff.

(1)

14 *Mass. Rep.*378, Gooch, *Exr.,*vs. *Atkins.*

(2)

6 *Mass. Rep.*178, per Sedgwick, J.— *Style,*148.

(3)

*Stat.*1783, c. 57.

(4)

10 *Mass. Rep.*263, per *Sewall,*J.

(5)

5 *Mass. Rep.*344, *Higbee & Al*vs. *Rice.*

(6)

**8 *Mass. Rep.*567.

(7)

*Bac. Abr. Execution, C.*2. — 8 *Co.*171.—7 *H.*6,2

*Curia.*

Both parties in this cause claim under *B.*Parsons, as holding in right of his wife; and the only questions which have been submitted to our consideration arise on the comparison of their respective titles under *Parsons,*and on the form of the present action.

As to the title, it is clear that the term for years, given to Mrs. *Parsons*by the will of her former husband, was merged, as to one third, in the estate for life given to her,' in the same will, in one third of the premises; or perhaps it may be more properly said that the term, as to one third of the premises, never legally existed; because she had, by the same conveyance, a freehold estate in that third ; and she could not enter to take possession of the term, without being immediately seised of her estate for life.. The term was not to endure absolutely until the year 1823; but if the life estate should expire, the term would expire with it.

The levy of the defendant’s execution, being made in the manner prescribed by law for taking real estate, is good as far as it applies to the estate for life, and gives a good title to the defendant in one half of that estate — that is, in one sixth part of the premises, for the joint lives of *Parsons*and his wife, *(a)***The lease made by *Parsons*to the plaintiff, being prior in date to the attachment and execution of the defendant, would have defeated them, if the lease had been duly acknowledged and recorded. But not having been recorded, it is clearly ineffectual as against the attachment made by the defendant. Although the term granted was less than seven years, yet the lease was to endure “ for more than seven years from the making thereof.” It comes within the words, as well as within the manifest intent, of the statute. (b)

As to the remaining two sixths of the premises, which were taken on the same execution, the question is, whether * the estate of *Parsons*was a real estate, or a chattel, within the true intent of our statute prescribing the manner of extending executions.

If this had been a new question, the argument on the part of the defendant would have demanded a more deliberate consideration *396But it may be considered as settled by uniform practice, as well as by the judicial construction of the like words in other statutes. In the statute of 1783, c. 32, for the conveyance of real estates by executors, &c., the words “ real estate,” and “ houses, lands, or tenements,” seem to be used indiscriminately, in describing what may be sold, by executors or guardians, under a license or order of court; and on the petition of *Gay. Adm.,*(5 *Mass. Rep.*419.) it was decided that a term for 999 years was a chattel, which the administrator might sell without any such license, *(a)**.*If long terms for years were more frequent among us, the legislature might, perhaps, have thought it proper to provide expressly for them, in the two statutes referred to. But as they are extremely rare, they seem to have been left on the footing of all other chattels; and when taken on execution, they have always been sold as chattels.

This practical construction of the statute is perfectly consistent with the language which distinguishes between real estate, on the one hand, and goods and chattels, on the other; and if the construction, contended for by the defendant, were even more plausible than it is, we should not willingly overturn a practice which is certainly not inconsistent with the apparent intent of the legislature. The defendant, therefore, has no title to these two sixth parts of the premises.

As to the remedy, if the plaintiff cannot prevail in this action, he must resort to an action of account, or *assumpsit*for money had and received to his use. This action of ejectment is better adapted to try the rights of the parties, and more consistent with the nature and circumstances of the case, than either of the others. The question may be * considered in the same view as if the plaintiff had never owned nor claimed more than a moiety of the premises. The defendant, with his execution, took the whole of that moiety, claiming it adversely to the plaintiff, and denying the plaintiff’s right to any part of it. His acknowledgment of the plaintiff’s right to the other moiety is no more than if he had admitted the right to be in any other person. The defendant, as to that, was a mere stranger ; and it made no difference, as to his claim, whether the plaintiff or any one else claimed the residue.

If the parties had gone on in that way for twenty years, eacfl receiving one half of the rents, such an adverse possession would have barred any right of entry in the plaintiff, as to the moiety which was held and claimed by the defendant. If so, if shows that the ouster was complete when the defendant first entered; as, *397otherwise, the adverse possession would not have continued for the whole of the twenty years, (a) The defendant entered, not only claiming the whole of this moiety, but claiming it under a statute conveyance, and he was put into possession, accordingly, by the sheriff. It differs, in this respect, from an entry by an heir, who is entitled, for example, to one sixth,'and merely declares that he claims a moiety

On the whole, the plaintiff is clearly entitled to all but one sixth of the premises; and the action which he has brought is as convenient to both parties, and more appropriate to the case, than either of the others that have been mentioned. He must have judgment for his term of and in five undivided sixth parts of the premises, and for his costs.

(a)

*.) Roberts*vs. Whitney, 16 *Mass. Rep.*186. — *Barber*vs. Root, 10 *Mass. Rep.*260.

(b)

*Rawlin*vs Turner, 12 *Mod.*610, 2 Ld. *R.*736. — *Balter vs. Reynold,,*ib. cit. *Bul*N. *P.*177. — *Rylef*vs. *Hicks,*1 *Str.*651.

(a)

*Montague*& *Al.*vs. Smith, 13 *Mass. Rep.*396.

(a)

*Cummings*vs. *Wyman,*10 *Mass. Rep.*464, 3d ed., cases cited in note.