#### Alexander M‘Mechan *versus*Luther Griffing *et al.*

Where land descended to several children, one of whom was indebted to his father, the intestate, and they made partition by deed, assigning to the debtor less than an equal part, by the amount of the debt, and a creditor of the same debtor not having notice of the partition, attached all the debtor’s undivided share in the es« tate, it was *held,*that the attachment created a lien which was not defeated by the partition.

If the partition had assigned to the debtor his full share in the land, whether the lien would not have attached to the several shave, *qucere.*

If a creditor, having two demands against a tenant in common, attaches upon one of them all his debtor’s undivided interest in the land, and then partition is made, he may, upon the other, attach the debtor’s several share.

This was a petition for partition.

The facts were, that Timothy Grilling, the elder, died on September 11th, 1820, leaving five children and heirs, namely, Timothy, Luther, William, Harvey and Martin Grilling, all of lawful age. At his decease he was seised of the following parcels of land in Richmond, namely, a homestead, appraised at $3270, a lot appraised at $1075, and the “ Tracy lot” appraised at $119', amounting in the whole to $5535. On May 9th, 1821, the heirs met for the purpose of making a

*547settlement of the estate and a division of the real estate among themselves. At this meeting it was agreed, that Timothy and William were indebted to the estate, and that the estate was indebted to Martin, Luther, and Harvey ; and that the personal property, except $ 67-85, had been expended in payment of debts and expenses qf administration. The real estate was so divided among the heirs, that Timothy and William paid their debts, and Martin, Luther and Harvey received payment of their claims. Timothy’s share amounted to $591, and was set off from the north part of the Tracy lot. The division was effected by deeds of release executed by the heirs to each other, which were recorded on March 5th, 1822. The petitioner, M‘Mechan, attached Timothy’s undivided share on February 12th,.1822. On May 6th, 1822, as surviving partner of M‘Mechan & Winkoop, he attached the land set off and released to Timothy ; previous to which time M‘Meehan’s attorney did not know but that his whole claim was due to him in his individual capacity, and included in the first action ; but being then informed to the contrary, the other suit was commenced. At October term 1822 M‘Mechan recovered judgment in both actions, and in November 1822 he levied the execution in his first suit, upon two thirteenths of the homestead, appraised at $ 365-86, and the other on a part of Timothy’s several share, appraised at $373-50.

The object of this petition was, to have two thirteenths of the homestead set off to the petitioner in severalty.

*C. A. Dewey*and *Porter*contended,

that the first attachment created a lien on Timothy’s undivided share, M‘Mecban not having had notice of the deeds, and that the heirs could not defeat it by their partition. *Procter*v. *Newhall,*17 Mass. R. 81.

The partition was illegal as against a creditor, because a debt due from Timothy to his father was set off against his share, as an advancement. *Osgood*v. *Breed’s Heirs,*17 Mass. R. 356 ; *Procter*v. *Newhall, ubi supra.*

The petitioner’s claim is sustainable on the ground of equity as well as in law, since by both levies he has taken less than Timothy’s share of the estate.

*Briggs*and Bishop, for the respondents,

contended that the

*548petitioner, by his first writ, acquired a lien only to the amount his demand, and that this lien afterwards attached to the land set off to Timothy Griffing in severalty. *Jackson*v. Peirce, 10 Johns. R. 414. The petitioner’s second attachment was a ratification of the partition made by the heirs.

Wilde J.

delivered the opinion of the Court. Upon the facts agreed we are of opinion, that the plaintiff’s attachment of February 12th, 1822, was a valid attachment of Timothy Griffing’s undivided share of the premises, notwithstanding the previous division between the heirs, as the deeds of release, by which the division was effected, were not recorded until after the time of the plaintiff’s attachment;1 and this attachment was not waived or defeated by the subsequent attachment, made by him as surviving partner of the firm of M‘Mechan & Winkoop. The demands were different, and he did not act in the same capacity in both of these transactions. He has a right to adhere to his first attachment. The defect of title, if any there be, is in that derived from the second attachment. But if both titles should stand, no injustice will be done; for it appears that the amount of both executions does not exceed the value of Timothy Griffing’s share.

It has been argued, that the first attachment, after the division between the heirs was completed by the registry of the deeds of release, attached to the separate share assigned to Timothy Griffing in the division ; and the case of *Jackson*v. Peirce, 10 Johns. R. 414, is cited in support of this position. But that case does not apply to this. In that case, the whole purparty in dispute was assigned by the partition in severalty. Here the division was void against the attaching creditor, he having no notice, at the time of the attachment, and it appearing, that the debt due to the deceased from Timothy Griffing was taken into consideration, and his share thereby greatly reduced. This debt was not considered as an advancement, and there is no evidence that it was so intended, nor is there indeed any pretence that it can be so considered. *Osgood*v. *Breed’s*Heirs, 17 Mass. R. 356.1 Nothing therefore has been *549shown sufficient to defeat the petitioner’s title under his first attachment.

_ . *Judgment for*petitioner.

1

 See *MMechtm*v. *Griffin,*3 Pick. (2d ed.) 157, note 1.

1

 See Revised Stat. *c,*61, § 9