#### Ebenezer T. Warren *versus*James Childs.

A, being seised of land subject to a mortgage, conveys the same to B; alter which C attaches it as the property of A. Pending C’s action, D agrees to purchase the estate of B, and pays the consideration agreed on. B, instead of a conveyance to D, makes a release to A, who had before conveyed to D, and D had entered, and he continued seised until C extended his execution within thirty days after judgment. It was holden, that nothing passed by B’s release to A, and that C took nothing by the extent of his execution.

This was a writ of *entry sur disseisin,*in which the demandant counts upon his own seisin, and upon a disseisin by the tenant.

The parties agreed to submit the action to the decision of the Court upon the following facts: On the 7th of November, 1810, one *Ephraim Dutton,*being seised in fee of the demanded premises, mortgaged the same to *Joshua*Gage; and on the 29th of June, 1811, for a valuable consideration, conveyed the same by deed with warranty to **B.*and *N. Tucker,*referring [ * 223 ] to and excepting the encumbrance thereon to *Gage;*which deed was duly acknowledged and recorded on the same day.

On the 11th of October, 1811, *Dutton*being in possession of the premises thus conveyed to *B.*and *N. Tucker,*and at that time erecting a house thereon, the demandant attached them as *Dutton’s*property, by virtue of a writ, upon which judgment was rendered against him in May, 1812.

On the 7th of November, 1811, the tenant, *Childs,*agreed to purchase the premises, subject to the mortgage to *Gage,*and gave his promissory note for 900 dollars, and placed the same in the hands of Mr. *Bridge,*as attorney to *B.*and *N. Tucker,*and took from him an obligation to procure a deed of the premises from said *Tuckers*to the tenant, or to return him the said note, in case of their refusal. On the same day, the tenant took from said *Dutton*his deed with warranty of the premises, in which his wife joined to release her right of dower therein, which deed was duly acknowledged and recorded on the same day; and the tenant entered upon the premises on the 15th of the same November, and continued seised until the levy of the demandant’s execution.

On the same 7th of November, the said *Bridge*wrote to his partner, then in *Boston,*stating to him the arrangement he had made with the tenant, and requesting him to procure from the said *Tuckers*their release of the premises to the tenant; and on the 11th of November, the *Tuckers,*being informed of the arrangement made.by their attorney, acquiesced therein and made a release of the premises to *Dutton,*his heirs and assigns, instead of the tenant; *208which was thereupon forwarded to Mr. *Bridge,*who delivered the same to the tenant and took up his said obligation, and the tenant caused the said release to be recorded on the 5th of December following, he having no notice of the attachment made by the demandant.

Within thirty days after the demandant recovered his judgment against *Dutton,*he levied his execution upon the demanded premises, and the same were regularly set off to him as the estate of *Dutton,*and the execution and return were seasonably recorded.

* If it should be the opinion of the Court, upon these facts, that the demandant was entitled to recover in this action, the tenant agreed to be defaulted; if not, the demand ant was to become nonsuit.

The cause was argued, at the last May term in this county, by *Wilde*for the demandant, and by *Williams*for the tenant; and, being continued for advisement, the opinion of the Court was delivered at this term by

Sewall, C. J.

In all cases the demandant is to recover upon proof of the title relied on in the count of the writ, which admits the seisin of the tenant. If the demandant in the case at bar acquired no title by the levy of his execution against *Dutton,*he had no seisin ; the count is not maintained. For, in that case, the demandant has not been disseised by the tenant; and whether he can prove a title in himself, excepting as an actual seisin is a title until a better title is proved, is not the question now to be decided.

The demandant’s execution having been levied within thirty days after judgment, if he acquired a title by the levy, it must be considered as existing by relation from the time of the attachment, which was made October II, 1811. That at least must be the operation of the levy in the case at bar, as a title to be compared with the title of the tenant under the deed of *Dutton,*made to the tenant on the 15th of November, 1811, after the attachment.

The supposition made for the demandant, upon which his title rests, is that the release from the *Tuckers,*in performance of their bargain with the tenant, but written and made, by some unaccountable mistake, to *Dutton,*conveyed a title to him, which the demandant acquired by his levy; because, against the effect of the execution and levy, the tenant cannot set up the deed made to him by *Dutton*subsequent to the attachment. And, in fact, *Dutton’s*deed to the tenant conveyed nothing; for *Dutton*then had nothing, not even an equity of redemption, which he had any capacity to convey; that deed having been made before the formal reconveyance io *Dutton.*

*209*The legal title of the premises in question was then, [ * 225 ] and for aught that appears is yet, in *Gage,*by virtue of the mortgage to him, subsisting at the time when the *Tuckers*purchased, when *Dutton*undertook to convey to the tenant in this action, and at the time of the attachment and the extent of the execution by the demandant. As against *Gage,*the *Tuckers*purchased an equity of redemption, but subject to that encumbrance ; as it respects others claiming from them, the whole fee and estate had vested in the *Tuckers*before the demandant made his attachment. The subsequent deed of *Dutton*to the tenant was there fore nugatory, as a conveyance of title, and had no operation to defeat a registered deed. The entry under *Dutton’s*deed by the tenant, or that deed itself, *Dutton*being in possession, was a disseisin to the *Tuckers,*which continued when they attempted to reconvey the estate by a release to *Dutton.*This, if it had been a bargain and sale, would have been without effect, as an attempt to convey a right of action.

And there is a further objection to the operation of that deed, as a conveyance of a title to *Dutton.*He also was out of possession. Against him the possession was rightfully in the tenant; and *Dutton*was therefore incompetent to receive a release; which, if it had any operation, was a release to pass the right. The deed relied on, as constituting the title acquired by the levy of the execution, was therefore wholly ineffectual; first, because the releasors had no power to convey an estate against the tenant, then in the legal seisin of the demanded premises; and, secondly, because no release could have any operation to pass the right and title, much less a seisin, of the land, to a person out of possession, one who had by a solemn contract transferred his possession to another, as an estate in fee to be vested in him. *(a)*

In this view of the case, therefore, and taking it for granted that there is no suggestion of collusion or fraud between *Dutton*and the tenant, to the prejudice of *Dutton’s*creditors, the demandant acquired no seisin by his levy upon an * estate, which had never been effectually reconveyed [ * 226 ] to *Dutton.*He was not, in fact, and he could not be, without a palpable fraud, a party to that conveyance ; which was unaccountably managed by the counsel for the tenant, as acting for him, and not for *Dutton.*If a party in intention, the rules of law deprived that deed of all effect; nothing passed by it.

*210There might be a further question, as between *Gage*and the demandant, if it does not arise between these parties, supposing no title disclosed on the part of the tenant; that is, whether an extent of an estate mortgaged, made by appraisement in the common form, entitles the judgment creditor to a right of redemption. There is a statute which has provided a very different mode of levying an execution, when a right of redemption is to be acquired. (1) I am not prepared to say that a levy upon real estate, which happens to be under a mortgage at the time, if the appraisement is made without any deduction for the encumbrance, might not avail to the judgment creditor, as a title against the debtor, and any claiming under him by a subsequent conveyance; supposing the judgment creditor willing to lose the value of the encumbrance, and to take the estate as absolute in his debtor. But I think the statute is conclusive against a levy of an equity of redemption, recognized, taken, and appraised as such, otherwise than by a sale at auction in the manner prescribed by the statute. How the levy was affected in this case, and whether with any reference to *Gage’s*mortgage, or by an appraisement of the demanded premises, as a clear and unencumbered estate, does not appear, *(b)*

We are satisfied that nothing was gained by the levy, in whatever form made, which was intended to be of the estate of *Dutton;*because he had, at the time, no estate, or demand, or title of any kind, which could be levied upon, in any part of the demanded premises.

*Demandant nonsuit.*

(a)

*Porter*vs. *Perkins & Al.*5 *Mass. Rep.*233. — *Thatcher*vs. Cobb, 5 *Pick.*425. — *Ilamblet*vs. Francis, 4 *Mass. Rep.*78. — *Kennebeck Purchase*vs. *Call,*1 *Mass. Rep.*483. *— Bennet*vs. *Irwin,*3 *Johns.*366.—4 *Dane, Abr.*144, c. 110, art. 5, 826. — *Dixon on Title Deeds,*663—665. — 2 *Prest. Com.*324. — Sed vide *Russell*vs. *Coffin,*8 *Pick*143. — *Pray*vs. Pierce, 7 *Mass. Rep.*381.

(1)

*Stat.*1798, c. 77, § 4. And see *Barber*vs. *Root,*ante, vol. x. 269.

(b)

**Vide *White*vs. *Bond,*16 *Mass. Rep.*400.— *Cushing*vs. *Hurd,*4 *Rick.*263.-— *Carpenter & Ux.*vs. *Inhab. First Parish in Sutton,*7 *Pick.*4.