#### Thomas Brown *versus*The President, Directors, and Company, of the Maine Bank.

The assignment of a judgment and execution, afterwards extended on land which had been attached on the original writ, and a release thereof by the judgment creditor to the assignee after the extent, was held to convey a title in the land to the assignee, good against a creditor of the judgment creditor who attached the same after the extent, and before the execution of the release.

*147This was a writ of *entry sur disseisin,*in which the' demandant counted upon his own seisin within twenty years, and a disseisin committed by the tenants by *Jacob Cram,*their lessee.

At the trial, which was had upon the general issue, before *Thatcher,*J., October term, 1812, the following facts were proved or admitted: —

On the part of the demandant it was proved that, on the 5th day of August, 1807, at forty-five minutes past seven o’clock, P. M., the demanded premises were attached, at the suit of *William Brown,*as the property of *Samuel Stephenson;*that the said action was duly entered and prosecuted, and at the Court of Common Pleas holden at *Portland*on the third Tuesday of June, 1810 judgment was recovered by the said *W. Brown*against the said Stephenson, for the sum of 3522 dollars 90 cents debt or damage, and 16 dollars 70 cents costs, upon which judgment execution was duly issued on the 29th day of the same June. On the 9th day of the July following, the said *W. Brown,*on the back of said execution, made an assignment of the same and of the said judgment to his brother, *T. Brown,*the present demandant, purporting to be for the consideration of 2000 dollars. On the next day, the said execution was duly extended on the demanded premises, as the property of the said *Stephenson;*and seisin was delivered to the said *T. Brown,*as the attorney and assignee of the said *W. Brown,*on the 14th day of the same month. And afterwards, on the day last mentioned, a *deed of release of the [ * 154 ] demanded premises was duly executed by the said *W.*

*Brown*to the demandant; which deed, and the execution, with the doings thereon, were duly recorded in the register’s office at fifteen minutes past two o’clock, P. M. The premises were appraised on the said extent at 2800 dollars; and the consideration named in the deed of release was only 2000 dollars. The said *W. Brown*testified that, at the time he executed the said assignment and deed of release, he was indebted to his said brother, *T. Brown,*in the sum of 1356 dollars 31 cents, and on the day when the said assignment was executed, the said *T. Brown*gave him his negotiable note for 1500 dollars, payable in one, two, and three years, in full for the consideration of the said assignment, which said note the said *W. Brown*afterwards transferred ; but that no discharge was given for the previous debt which he owed the said *T. Brown;*that he, the said *W. Brown,*was then indebted to the present tenants on two several notes, on which they afterwards recovered judgment, as hereafter stated. It was also proved by one *Gerrish,*a deputy sheriff, who levied the aforesaid execution, that *G. Bradbury,*Esq.. *148one of the directors of the said bank, and the attorney who made and endorsed the writ, and prosecuted the suit hereafter mentioned in favor of the bank against *W. Brown,*was by him informed of the assignment of the said execution before the levy; and that he was directed by said *Bradbury*to make the attachment at the suit of the bank, immediately after seisin was given to said *T. Brown.*

The tenants proved, on their part, that, on the 5th day of August, 1807, the said *Stephenson,*for a valuable consideration, executed a mortgage deed of the demanded premises to one *David Hale,*as collateral security for a debt then due from him to said *Hale.*The said deed, having been executed between the hours of nine and ten in the evening of that day, was immediately after carried to the register’s office and recorded. On the 19th day of the same August, the said *Hale,*for a valuable consideration, assigned the [ * *155*] said * mortgage to the tenants, which assignment was duly acknowledged and recorded on the same day. On the 1st day of July, 1810, the tenants sued out a writ of attachment against the said *W. Brown*on the notes above mentioned, which was delivered to the said *Gerrish,*who thereon attached the demanded premises as the property of the said *W. Brown,*immediately after he had delivered seisin and possession thereof in satisfaction of the execution aforesaid, and before the execution of the release from *W. Brown*to *T. Brown.*The said action was duly entered and prosecuted, and judgment entered therein at the Court of Common Pleas holden at *Portland*on the first Tuesday of March, 1811, and continued by adjournments tó the 15th day of the same month, for the sum of 2793 dollars 27 cents debt, and 9 dollars and 70 cents costs ; and the execution issued on said judgment was duly extended on the demanded premises within thirty days after the rendition thereof; and on the 6th day of April following, seisin and possession were given to *S. Freeman,*Esq., as the agent of the said bank, and the execution was duly returned and recorded on the same day.

On the 5th day of August, 1807, before the said *W. Brown*made his attachment, the said *Hale*met him, and told him he was going to *Stephenson’s*to obtain security of him for the sum due to him,'the said *Hale.*It was admitted that *Jacob Oram,*as lessee of the tenants, was in possession of the demanded premises at the time of the commencement of this action.

A verdict was taken for the demandant by consent, subject to the opinion of the Court upon the foregoing facts.

The cause was argued, at the last May term in this county, by *Whitman*for the demandant, and *Longfellow*for the tenants.

*149*Longfellow.*

The assignment and release of *W. Brown*to the demandants was fraudulent, as there was no discharge of the preexisting debt due to the demandant. *[Curia.*There was a sufficient consideration in the promissory note * given. The jury might infer fraud, but we cannot.] [ * 156 ] The principal question, then, is, whether, at the time of our attachment, the demanded premises were the property of *William*or of *Thomas Brown.*

The assignment of the judgment and execution could not operate as a conveyance of the land. It was but an equitable assignment of the debt, and had none of the legal formalities necessary to a conveyance of land, as acknowledgment and registry.' No right or interest in the land could pass by a mere assignment in equity of the execution.

*Whitman.*

In the want of courts of equity, our courts of law have gone great lengths in support of equitable assignments, so as to protect the assignee against the creditors of the assignor. Even after the death of the assignor, they have permitted the assignee to use the name of his executor or administrator in pursuing the demands assigned, even against their will. A creditor has by law a right to levy his execution on his debtor’s land; and if the assignee has the whole interest in the debt, he must with it have the right to levy which his assignor had. The debtor in such case has a right of redemption; and if he would exercise it, he must tender-payment to the assignee. Further, if he had that right in this case, the present tenants could attach nothing but the equity of redemption. They could not, by thus inserting themselves, deprive *Stephenson*of his right to redeem against our lien.

The cause stood continued to this term for advisement, and now the opinion of the Court was delivered by

Sewall, C.. J.

(After stating the facts from the judge’s report.) The verdict is objected to upon the ground that the title in the demanded premises had not vested in the demandant at the time of the attachment made for the tenants. The title, it is argued, was then in *W. Brown,*notwithstanding the assignment of the judgment and execution ; because the release by *William*to *Thomas,*to confirm his title in the demanded premises, had not then been executed.

The assignment of a *chose in action,*when made *bona fide,*and for a valuable consideration, has been uniformly

* protected and carried into effect, according to the in- [ * 157 ] tentions of the parties. Several decisions of this Court might be cited to maintain this position. Among them, that iu *150the action of *Parker & Ux.*vs. *Grout & Al.**(a)***is one, where the rights of the party in interest were enforced against the claims of the nominal party, and against his attempt to release [ * 158 ] the debt which had been assigned. And with the * same effect, assignments have been enforced against the claims of the creditors of the- assignor; as where the party liable in the demand which had been assigned has been afterwards summoned as the trustee of the nominal creditor.

The Court see no essential difference in this case. After the assignment, supposing it *bona fide,*and made for a valuable consideration, the beneficial interest of *W. Brown,*in his judgment against *Stephenson,*was in *T. Brown.*

*151The means necessarily resorted to, and the proceedings on the execution, to satisfy this judgment by a levy and extent of real estate, although conducted in the name of *William,*are to be considered, for every substantial purpose, as availing to the use and benefit ol' *Thomas.*The release subsequently executed by *William*may be considered as a requisite formality in the transfer of real estate — a requisite to the registered title, and in the forms of conveyance. But upon the evidence of notice to the agent of the tenants in this action, before their attachment was made, of the actual transfer of the judgment and execution, the Court are clearly of opinion that the tenants are not to avail themselves of the defect, merely formal and nominal, in the title of the demandant, that being afterwards supplied by a release.

A title by execution takes effect by relation from the time when the proceedings commence, if these are regularly continued, and if the extent is subsequently registered within the appointed time of three months from the completion of the levy, *(a)***The release, supposing it necessary to the formal title, is not, indeed, within this provision, as to the relation which the registry has to the commencement of the levy. But the tenants are concluded by the notice to them of the right and interest acquired to the demandant in the judgment and execution. A subsequent purchase from *William,*by any person affected with this notice of the inchoate title of *Thomas,*would have been void, as fraudulent against him. An execution or attachment by a creditor of *William*is within the same rule.

A title by an unregistered deed is not complete, and will not avail against all persons; but it will avail, if *boná fide,**and for a valuable consideration, against a subsequent [ * 159 ] conveyance or transfer, whether by deed or attachment and execution, where the purchaser or creditor has had actual notice.

Whether the assignment in the case at bar was *boná fide,*and for a valuable consideration, might have been made a question upon the facts proved. This, however, was a question of fact to be left to the jury upon the evidence. That the debt, understood between *William,*and *Thomas*as a part of the consideration of the assignment, was not then released and discharged by *Thomas,*is a circumstance from which, if unexplained, a suspicion of trust and confidence might arise. The credit of several years, given upon the promissory note accepted in payment of the remaining part of the consideration, is another circumstance of the same import. The *152inference of fraud, however, is to be made as a conclusion of fact, and not of law. The evidence ought to have been referred to the jury, if the tenants were not satisfied on this point. But a new trial is not moved for, nor is the objection to the verdict insisted upon on this ground.

If we give the demandant all the advantage of the judgment assigned to him, we must consider his title as taking effect by rela lion from the time of the attachment returned on the writ of *TV. Brown*against *Stephenson.*The consequence of this relation is, that the mortgage by *Stephenson*to Hale, under which the tenants also claim by virtue of *Hale’s*assignment to them, is necessarily postponed to the title of the demandant. The declared intention of *Hale to*obtain security of his demands against *Stephenson,*even if it had the supposed effect of suggesting to *W. Brown*the necessity of diligence on his part to secure his demands against *Stephenson,*is not to be regarded as notice of a legal title inchoate in *Hale,*but not completed. This intention of securing himself, if known to *W. Brown,*was no restraint upon him to prevent him from exercising his right as a creditor of *Stephenson.*

Upon the whole, the demandant’s title, acquired from his brother, *TV. Brown,*supposing the assignment *bona fide,*and f * 160 ] * for a valuable consideration, which seems not to have been questioned in the argument upon the case reported is, we think, the better title; and judgment is to be entered accord ing to the verdict, *(a)*

(a)

*Suffolk,*Supreme Judicial Court, February term, 1803.

*Jonathan Grout*and *Jonathan Grout,*Jun., were attached to answer to *Samuel Parker*and *Abigail,*his wife, in a plea of the case for not paying their two several promissory notes, dated March 15, 1796, payable to the said *Abigail,*then sole, by the name of *Abigail Hale,*or her order.

The defendants pleaded in bar a release by the said *Samuel*to the said *Jonathan Grout*of all debts, &c., *viz*: On the 17th of March, 1800, the said *Samuel*having before that time, *viz.,*on the 30th of October, 1796, intermarried with the said *Abigail,*and she being then his lawful wife, and made *proferí*of the said release.

The plaintiffs replied that, prior to the supposed execution and delivery of the said release, and prior to the intermarriage of the plaintiffs, *viz.,*on the 39th of October, 1796, he, the said *Samuel,*did, in consideration of the said intended marriage, by a certain writing obligatory of that date, by him duly executed and delivered to one *Thomas Hale,*as trustee for the said *Abigail,*assign, &e., unto the said *Thomas,*in trust for the sole use and benefit of the said *Abigail,*during the time of the said intermarriage, and after her decease, for the use and benefit of her heirs, all the personal estate which the said *Abigail*then had, or might in any way have before the said marriage, or during the said intermarriage; — to have and to hold the same during their said intermarriage, for the sole use and benefit of her, the said *Abigail;*so that neither he, the said *Samuel,*nor his heirs, executors, &c., should receive, hold, use, or enjoy, any part of the personal estate of the said *Abigail.*And the said *Samuel*did, in and by the said writing obligatory, for the consideration aforesaid, among other things, covenant with the said *Thomas,*trustee as aforesaid, that, if said intended marriage should take effect, he would not, at any time during said intermarriage, take, dispose of, or convert to his own use, any of the personal estate of the said *Abigail,*which she then had or might have in her own right before said marriage, without the express and personal consent of her, the said *Abigail,*thereto first had and obtained; that he would not, at any time, &c., take or receive to his own use the payment of any debts or demands owing to her, the said *Abigail,*without her express and personal consent first had and obtained thereto ; and generally that the estate, both real and personal, of the said *Abigail*should not, during said intermarriage, be lessened or impaired by act of him, the said *Samuel.*The plaintiffs then aver that, in pursuance of the said agreement, and before the commencement of this action, and the supposed execution of the said release, the said marriage took place, *viz.,*on, &c.; that the said several promissory notes were, prior to the said marriage, part of the personal estate of the said *Abigail;*that this action is instituted for the recovery of the payment thereof for her sole use and benefit; and that she never consented to the execution of the said release by the said *Samuel,*nor to the payment of the said notes to him. Of all which matters and things the defendants, prior to the supposed execution of the said release, *zAz.,*on, &c., had severally due and personal notice. All which, &c., wherefore, &c.

To this replication the defendants, after oyer had of the said obligation, demurred generally; and tns plaintiffs joined in demurrer

*Judgment for the plaintiffs.*

(a)

*Heywood*vs Hildreth, 9 *Mass. Rep.*393. — *Shove*vs. *Dow,*13 *Mass. Rep.*529

(a)

*Alden*vs. Holden, 9 *Mass. Rep.*133. — *Dunn*vs. *Snell & Al.*15 *Mass. Rep.*481*Northampton Bank*vs. *Whiting, 12 Mass. Rep.*104.