#### Joseph Hurd Junior *versus*Elijah Cushing *et al.*

An agreement, partly verbal and partly in writing, was made between T and S, by which T was to furnish the materials and S the land for the erection of salt-works, to be owned by them in common, three fourths by T and one fourth by S, and each was to have the right of entering upon, repairing and using the salt-works whenever he should think it necessary. In pursuance of the agreement, S procured 0 lease of land to himself during the term of time that salt-works should be erected and used on the land. S afterward conveyed all his right, title and interest in an undivided fourth of the salt-works to C and his heirs, covenanting that he was seised in fee of the granted premises and warranting the same ; and C levied an execution on the other three fourths as the real estate of T, S and the lessor of the land acting as appraisers. The demandant then levied on the whole of the land and salt-works as the real estate of C, entered into possession and took the profits. Three fourths of the salt-works were afterward taken as personal property on an execution against T and sold to the tenant, and C made to the tenant an assignment of the fourth part which S had formerly conveyed to C, and the salt-works were then held and occupied by S and the tenant, pursuant to an agreement between them, until the death of S. In a writ of entry to recover the whole land, with the salt-works, it was *held*: —

That S took by the lease an estate for life, determinable upon the salt-works ceasing to be used :—*

That the demandant acquired by his levy all the original title of S in one fourth of the demanded premises, but that his right of action was destroyed by the death of S ; —

That T was not a tenant in common of the land with S : —

That C, by his levy, became actually seised by disseisin of three fourths of the land, but that this was a wrongful seisin, which was defeated by the subsequent entry of S : — and

That C did not gain a title by estoppel as against S and his lessor by reason of their acting as appraisers in the levy of C’s execution against T.

Where a tenant for life conveys *“*all his right, title and interest55 in the land to the grantee and his heirs, with a covenant that he is seised in fee, only the life estate passes, for the covenant cannot enlarge the words of the grant so as to pass a fee by disseisin.

This was a writ of entry brought to recover a parcel of land, with the salt-works standing thereon, in Dartmouth. The tenants pleaded that they did not disseise the demandant, as alleged ; upon which issue was joined. It was agreed that the case should be considered in the same manner as if tried upon the issue joined, with special leave to the tenants to give in evidence the facts contained in a statement made by the parties. For the purposes of this action, the tenants were to be considered as tenants of the freehold.

By the statement above mentioned it appeared, that on De *175cembei 28, 1807, an agreement was entered into between David Thacher and Isaiah Smalley respecting the erection and use of fifteen pairs of salt-works. Thacher was to furnish the materials for the salt-works, and Smalley to furnish the land upon which they were to be erected. Thacher was to be the owner of three fourth parts of the salt-works, and Smalley of the oiher fourth. Smalley was to have the superintendence of the whole, and as a compensation for his services, he was to receive half of the profits. The salt-works were to be continued and used by Thacher and Smalley for so long a time as they should see fit, and Thacher, as well as Smalley, was to have the right of entering upon, repairing and improving them, whenever and as often as in their opinion it sho Id be necessary.

In pursuance of this agreement, Smalley obtained a deed of a tract of land of Clarke Ricketson, who was seised thereof in fee, on which fifteen pairs of salt-works were erected on the terms stipulated between Thacher and Smalley. This deed was given up on the 17th of February, 1810, when another deed, similar in terms, but including the same land and other land adjoining, was made by Ricketson to Smalley ; which was recorded in December, 1814, though it had not been acknowledged. By this last instrument, Ricketson, in consideration of 26 dollars “to be paid annually so long as the salt-works are improved or stand on said land, &c. doth grant, demise and lease unto Smalley, his executors, administrators and assigns, a certain piece of land, &c. being sufficient to contain eighty cranes of salt-works, with two open cisterns and the privilege of using the pump mills and the salt stores standing on the premises,” &c. After the making of this last instrument, additional salt-works were erected by Thacher and Smalley upon the same terms as the fifteen pairs first mentioned. The only memorandum in writing respecting the agreement between Thacher and Smalley, was made on the back of a contract between Thacher and one Small, and was as follows: — “We &c. do hereby agree to improve fifteen pairs of salt-works erected in Dartmouth in the same way and according to the manner as the within agreement specifies.” This was signed by Thacher and Smalley, and was dated *176December 28, 1807. In the contract referred to between Thacher and Small, it is recited that Thacher had supplied Small with all the materials necessary to erect salt-works ; and Small agrees to take care of the works, take the salt out, measure it for market and put it into barrels ; Thacher is to pay half the expense of barrels and of wood, and three quarters of the expense of repairs, Small paying the other quarter ; the net income is to be equally divided ; and if Small, or his heirs or assigns, shall at the expiration of four years wish to pin-chase the works, he or they are to pay Thacher three quarters of the value, which is to be ascertained by appraisers.

The salt-works consist of posts driven deep into the earth, on the tops of which are placed open pans made of plank, into which the salt water is pumped by means of pumps sunk into the earth to the depth of twelve or fifteen feet. The chief value of the works consists in the relation of the respective parts to each other, and they would be of comparatively little value if removed.

Thacher and Smalley continued for several years to hold and use the salt-works for the manufacture of salt.

About the 12th of October, 1816, Thomas Cushing having obtained a judgment against Thacher, levied his execution upon three undivided quarter parts of the land and of the salt-works standing thereon, as the *real*estate of Thacher. JRicketson and Smalley acted as appraisers in making the levy.

On the 8th of April, 1817, Smalley, for the consideration of 1362 dollars, conveyed to T. Cushing, his heirs and assigns, all his “ right, title and interest in and to one undivided fourth part of the salt-works situate, &c. and bounded,” &c. and covenanted that he was seised in fee of the granted premises, and that he would warrant and defend the same to T. Cushing, his heirs and assigns forever, against the lawful claims and demands of all persons. On the 14th of the same April, T. Cushing gave Smalley a bond with condition to reconvey upon Smalley’s paying a note given by him for 1362 dollar's. The deed was duly recorded in July, 1817, but the bond was never put upon record, and the demandant, when he afterward levied on the land and salt-works, as hereafter stated, had no knowledge of its existence.

*177*Oct. 30th, in Norfolk*

On the 21st of August, 1818, the demandant levied an exe- ■ ■tition against T. Cushing, upon his right, title and interest in the land and salt-works, and the whole of the land and salt-works was duly set off, and possession thereof given to him. Ricketson was one of the appraisers. The demandant remained in possession of the land and salt-works, under his execution, taking the profits. He claims fifty-three cranes of salt-works, with the land on which they stand, as specified in the deed of Smalley to T. Cushing.

In October, 1820, Nathaniel Cushing levied an execution against Thacher, upon the salt-works as the *personal*property of Thacher, and at the sheriff’s sale three quarters of the salt-works were purchased by N. Cushing. The other quarter was assigned, May 4, 1820, by T. Cushing to Nathaniel (to whom the note of Smalley for 1362 dollars had been indorsed), and notice thereof was forthwith given to Smalley by Nathaniel.

On the 17th of June, 1823, Smalley and N. Cushing entered into an indenture, by which Smalley, in consideration of the covenants of N. Cushing therein contained, assigned all his right, title and interest in and to seven eighth parts of the land to N. Cushing. Since the making of this last assignment, the salt-works have been held and occupied by Smalley and N. Cushing and their respective representatives (Smalley and N. Cushing having both died before the commencement of this action), pursuant to the terms of the indenture.

If the Court were of opinion that the demandant was entitled to recover the whole or any part of the estate claimed in this action, the tenant was to be defaulted, &c. but otherwise the demandant was to be nonsuited.

*S. I).*Ward, for the demandant.

The deed of Ricketson k> Smalley conveyed a freehold, inasmuch as Smalley m ght •lave used the land during his life. Cruise’s Dig. *tit.*3, § 6 ; bid. *tit.*8, c. 1, § 6.

If Smalley had a freehold, the salt-works erected pursuant o his agreement with Thacher were fixtures, and must be aken on execution as real estate, and not as personal property. Amos and Ferrand on Fixtures, 2, 44, 98.

If the salt-works were not fixtures from their relation to the *178soil, the agreement between Smalley and Thacher made them fixtures. Thacher could not, without a violation of the agreement, remove the three fourths owned by him. As between him and Smalley they were fixtures, if he had a right in the land ; Amos and Ferr. on Fixt. 180 ; *Union Bank.*v. *Emerson, 15*Mass. R. 159; and he had a right of entry (or the purposes mentioned in the agreement with Smalley, which could not be revoked. *Winter*v. Brockwell, 8 East, 310. A tenancy at will is sufficient to make the works fixtures.

T. Cushing having levied on three undivided fourth parts of the land and salt-works as real estate, and taken possession, the question is, whether he acquired any estate in the land, either in virtue of the levy or in any other way ; for if he took any estate in the land, the works would become fixtures, and pass as appurtenant, even if they were personal property before *Doane*v. *Broad-Street*Association, 6 Mass. R. 332. It appears by the officer’s return, that seisin and possession were delivered to T. Cushing. He claimed to hold in fee, and exercised power over the land. He therefore acquired a title, at least as against a stranger. It will be said that Thacher had no interest in the soil, and so no interest passed by the levy. If this objection were made by Ricketson or Smalley, it might be entitled to consideration ; but it cannot be urged by another creditor of Thacher, who attaches the salt-works as personal property and does not obtain possession of the soil by a better title than the demandant.

But if there was no title in Thacher, the levy was a disseisin of Smalley and Ricketson ; which gives a good title as against these tenants, who do not claim to hold under Smalley or Ricketson ; *Newhall*v. Hopkins, 6 Mass. R. 350 ; *Chapman*v *Gray, 15*Mass. R. 439 ; and the demandant, having had ac tual possession, may maintain the action. *Gore*v. *Brazier,*3 Mass. R. 539 ; *Bott*v *Burnell,*9 Mass. R. 96.

Smalley and Ricketson having acted as appraisers of the land when it was levied on by T. Cushing as the property of Thacher, are estopped to set up a title to it themselves ; for it would be a legal fraud upon T. Cushing to conceal their claim. Powell on Mortg. 434. He had a right to presume that they had given a deed to Thacher which had not been put upon *179record. *Porter*v. *Perkins,*5 Mass. R. 235 ; *Barnard*v. Pope, 14 Mass. R. 434.

T. Cushing is shown then to have had a title by right or by wrong, to three fourth parts of the demanded premises.

But another part of the case is to be considered. Smalley made a deed of one fourth of the land and salt-works to T Cushing after the levy. Though he undertakes to convey a fee, when he has only an estate for life, still the instrument is a good conveyance of the life estate. Or if not, it is a conveyance which he was wholly unauthorized to make, and so it was a disseisin of Ricketson. If this conveyance was a forfeiture of Smalley’s estate, the effect is to give the grantee a good title by disseisin, subject to be defeated by Ricketson. *Higbee*v. Rice, 5 Mass. R. 344; *Warren*v. *Childs,*11 Mass. R. 225. The bond of defeasance cannot avail against the demandant, it not being- known to him nor recorded.

When the demandant levied on the demanded premises, he acquired all the interest which was then in T. Cushing. Or if he took nothing from T. Cushing, he gained an estate by dis seisin. He entered on the land and received the profits. Ricketson was an appraiser in this levy too, and so is estopped to set up his title.

T. Cushing having accepted a conveyance in lee, and procured it to be recorded, it does not lie with him to say that Smalley conveyed a larger estate than he owned; Com. Dig. *Estoppel,*A; and his conveyance to N. Cushing with notice of the demandant’s levy, is a fraud on the demandant. If he was not estopped by his own acts, there was an adverse possession in the demandant which made the conveyance of no avail.

That nothing passed to N. Cushing by the sale of the salt-works as personal property, follows as a consequence of their not being capable of removal.

*L. Shaw*and *L. Williams,*for the tenants.

The opinion of the Court was afterwards drawn up by

Wilde J.

The demandant’s title, as appears by the facts agreed, is derived from one Thomas Cushing, and through him from David Thacher and Isaiah Smalley, three undivided fourth parts being derived from Thacher, and the remaining fourth part from Smalley. And as the titles of Thacher and *180Smalley depend on different principles, they will be consideren separately.

It appears that on the 28th of December, 1807, an agreement was made between Thacher and Smalley respecting the erection and use of certain salt-works, then contemplated to be built, and which are now standing on the demanded premises. By the terms of this agreement Thacher was to furnish „Le materials for the salt-works, and Smalley was to furnish the land upon which they were to be erected. In pursuance of this agreement Smalley afterwards procured a lease of a tract of land, including the demanded premises, from one Ricketson the owner, by which the same was granted and demised to him for an indefinite period of time, and so long as the salt-works then intended to be erected should continue to be used. By virtue of this lease the legal estate was vested in Smalley during his life, determinable by his ceasing to occupy the salt-works. On the 8th of April, 1817, Smalley conveyed an undivided fourth part of the demanded premises to Thomas Cushing. This was intended as a mortgage or security, and a bond of defeasance was given by Cushing to Smalley, but as this bond was not registered, and as the demandant had no knowledge of it when he extended his execution on the premises as the estate of Cushing, it is very clear, we think, that his title cannot be affected by that bond.1 The demandant therefore acquired by the levy of his execution against Cushing all the original title of Smalley to an undivided fourth part of the premises ; and as to this part he would be clearly entitled to recover, but for the death of Smalley. By his death the estate of the demandant was determined, and his right of action destroyed. And this fact may be pleaded in bar of the action, or may be given in evidence on the general issue, if the parties so agree ; and it being thus agreed in this case, it is clear that the demandant’s title derived from Smalley can no longer be maintained. Jackson on Real Actions, 168.

The same objection would apply to the title derived from Thacher, if he and Smalley were seised in common, as the demandant contends they were, by virtue of their agreement, and by the erection of the salt-works. We are however of *181opinion that Thacher had no legal title to the land ; and that, therefore, it is immaterial whether the salt-works are fixtures or not. 2 The legal estate was clearly in Smalley ; and if the works were fixtures, they passed with the land, and if they were personal property, the demandant acquired no title to them by the levy of his execution. All the right or interest which Thacher had in the land was a parol license to enter for the purpose of repairing and using the salt-works ; but this is not such a title as would enable him or his assigns to maintain a writ of entry. He was never seised, and therefore could not be disseised.

Nor can the demandant recover on his title by disseisin, or by estoppel.

True it is, that Cushing, by virtue of the levy of his execution against Thacher, became actually seised by disseisin, and this title passed to the demandant under the levy of his execution against Cushing. But this was a wrongful seisin, and was defeated or determined by the entry of Smalley. He entered in 1823, and since that time he and one Nathaniel Cushing, and their representatives, (the tenants being administrators of Nathaniel Cushing,) have occupied the premises ; so that it is clear that the demandant cannot now recover on a title by disseisin.

Nor can he recover on a title by estoppel. Smalley and Ricketson were strangers and not parties to the proceedings between Thomas Cushing and David Thacher. They acted merely as appraisers, and had no right to object to the form of the proceedings. And besides, they might have been, and probably were, ignorant of their legal rights ; and they were not bound to inform themselves as to the irregularity of the proceedings. As to the deed from Smalley to Cushing, his right only passed by it, and not a fee by disseisin. The words of the grant are, “ all my right, title and interest, in and to one undivided fourth part,” &e. It is true that the language of the covenants is more extensive ; but this will not enlarge the words of the grant so as to work a constructive disseisin of the land.

*182Upon, the whole, therefore, we are of opinion that the de' mandant is not entitled to recover, and according to the agree* ment of the parties he is to be nonsuited.

*Judgment for tenants for costs*

1

 See *Newhall*v. *Burt,*ante, 159, note 2

2

 See Chitty on Contr. (4th Am. ed.) 284 to 288, and notes.