#### Isaac L. Hedge *et al. versus*Isaac Drew.

A levy on the “westerly half” of a dwelling-house, “ with the land the westerly half of said house stands on, and the part of the garden oack of the said house, the width of the house,” to a bound specified, was held to be a levy by metes and bounds, and to be sufficiently definite as to the line dividing the house.

A delivery of a deed to the register of deeds by the grantor for the use of the grantee, to be recorded, and the grantee's subsequent assent to the same, is equivalent to an actual delivery to the grantee, and the deed will prevail against an attachment by a creditor of the grantor made after such assent.

Writ of entry, in which the demandants count on their own seisin and a disseisin by the tenant.

The demandants, to prove their title, gave in evidence an ‘execution recovered by themselves against Lemuel Drew, since deceased, and a levy thereon, made April 20, 1824, in pursuance of an attachment made October 4, 1823. This levy was objected to, on the ground that it was uncertain and unintelligible and not a levy by metes and bounds.

The officer’s return, after mentioning “a tract of land with a dwellinghouse thereon standing, lying in Plymouth in said county,” describes the land levied on as “a part of said premises, to wit, the westerly half of said dwellinghouse on the westerly side of the highway between Joseph Bartlett junior’s house and William Keen’s house lot, said westerly half of said house to include a right to pass in the front yard, and in and out the front door, and up and down the front stairs, and westerly part of the chimney and all the part of the kitchen lying westerly of the fire-place, and right to the aqueduct for water, and right in the yard on the westerly side of said house to lay wood, and passing to the garden and street, with the land the westerly half of said house stands on, and the part of the garden back of the said house, the width of the house, to Mrs.' Nicholson’s land, and the cellar, allowing the other half the house the right of passing out the back door.”

The tenant claimed title under a deed from the same Lemuel Drew to his daughter Sarah Drew, dated the 2d of October 1823, and executed, acknowledged and recorded on the 3d, embracing the demanded premises.

To this deed the demandants objected, 1. that it never was delivered so as to take effect as a deed : — and 2. that if it *147was delivered at all, it was not delivered until after he demandants’ attachment.

On these points the facts were, that Lemuel Drew called at the office of the register of deeds to have a deed drawn for him, conveying to his daughter a part of his dwellinghouse, and he there particularly described it; that thereupon the register drew the deed in question, dated October 2, 1823 ; that on the next day, October 3, Drew called again and executed the deed; that it was attested by the register and his son as witnesses; that the register then took and certified Drew’s acknowledgment; and thereupon Drew left it with him to be recorded. No person was present except Drew and the register and his son, who was a clerk in the register’s office. Drew requested the register to record the deed. He did not say to whom it was to be delivered, but the register concluded it to be Sarah’s deed, and supposed it was to be handed to her when it was recorded, and he did accordingly hand it to her brother, Thomas Drew, for her, a few days after it had been thus left.

It further appeared, by the testimony of Thomas Drew, that at the request of his sister he took the deed from the register’s office on Monday, October 6, and immediately delivered it to his sister as requested. He bad called at the registry for it both on Friday and Saturday, but found the office shut, it not being in regular office hours. He had also spoken to the register about' it in the street. His sister had expressed some anxiety to have possession of it two or three days before he obtained it. His father spoke to him about the deed, and asked him to call at the registry and get it for his sister.

His father said that he had been writing a deed at the office of the register, on the day it was done. He knew of the attachment made by the demandants on the original writ, and saw the summons thereon, on Saturday, October 4th, and knew of an attachment made by another person on October 3d.

Hamblin Tillson testified that he was one evening at Lemuel Drew’s, and Drew told him he had been at the register’s office that day and given a deed to Sarah of a part of his dwellinghouse, described particularly. The description cor *148responded sufficiently with that of the demanded premises At this conversation Sarah was present.

*Oct. 28th.*

*May term,*1832, *at Plymouth.*

Upon these facts the question was, whether there was any delivery of the deed from Lemuel Drew to Sarah ; and if so, whether it took effect at such time as to defeat the demand-ants’ attachment. If both points should be decided in favor of the tenant, and the demandants’ levy decided to be good, then a new trial was to be granted to try the question of fact, whether the deed was not void as against creditors, for want of a sufficient consideration. Therefore a nonsuit or default was to be entered and judgment rendered thereon, or a new trial ordered, as the Court, upon the whole case, might direct.

*Eddy*and *W. Thomas,*for the tenant,

insisted that the levy was not by metes and bounds, as the easterly boundary of the westerly half of the house was an imaginary line which could not be ascertained without the aid of a surveyor, and perhaps no two surveyors would fix upon the same line. Bac. Abr. *Execution,*C 2; 10 Vin. Abr. 593, *Execution, M. a.*4, cites *Pullen*v. *Birkbeak; Fenny*v. *Durrant,*1 Barn. & Aid, 40.

On the point that there was a delivery of the deed of Lemuel Drew to Sarah Drew previously to the demandants’ attachment, they cited *Maynard*v. *Maynard,*10 Mass. R 456; *Wheelwright*v. *Wheelwright,*2 Mass. R. 454; *Taw*v. *Bury,*3 Dyer, 167 *b; Verplank*v. *Sterry,*12 Johns. R. 551; *Doe*v. *Knight,*8 Dowl. & Ryl. 348; S. C. 5 Barn & Cressw. 671; *Stirling*v. *Vaughan,*11 East, 623.

*C. J. Holmes,*for the demandants,

cited on the first point, *Tate*v. *Anderson,*9 Mass. R. 92 ; *Boylston*v. *Carver,*11 Mass R. 515; — and on the second, *Jackson*v. *Phipps,*12 Johns. R. 418 ; *Harrison*v. *Phillips Academy,*12 Mass. R. 456.

Putnam J.

delivered the opinion of the Court. We are all of opinion that the levy is sufficiently set forth by metes and bounds. The house is proved to be on the westerly side of Court Street, which runs nearly from north to south, and to be between Joseph Bartlett junior’s house and William Keen’s house-lot. It stands with its end towards the street, *149and it fronts upon a yard that extends from the street to Mrs. Nicholson’s land, where a fence stands and is a known boundary. The westerly half of the house and the land under it, and the land to the westward of it and of the same width of the house, extending westwardly to the land of Mrs. Nicholson, is precisely set out by metes and bounds. -The rest of the levy consists of easements and rights or privileges which were necessarily created for the convenient enjoyment of the premises so set out by metes and bounds, to which we need not particularly refer. So that, in regard to the levy, we think the officer’s return is sufficient.1

We are then to consider whether Sarah Drew acquired the title of Lemuel, by a deed which was dated and recorded before the attachment was made ; and if she did, the tenant is to prevail, for it is admitted that he has lawfully acquired all title in the premises which Sarah Drew had. Now it is proved, that two days before the attachment, Lemuel Drew directed and employed the register of deeds to draw the deed, and Lemuel executed it before two witnesses, and left it to be recorded, as the register understood, for the use of the grantee, and it was in fact recorded one day before the attachment. The register handed the deed to the brother of the grantee, two days after the attachment, and the brother was requested by the grantee to go to the office and take it for her, two or three days before he obtained it. And the grantor told him, on the day when he executed the deed, that he had given a deed of the premises to Sarah Drew, and requested him to call at the office and get it for his sister, the grantee. And it was proved that the grantor told Hamblin Tillson that he had given a deed of the premises to Sarah Drew on the day that he had executed it, and Sarah was then present. We all think that the delivery to the register for the use of the grantee, and her assent to the same before the attachment, (which is to be inferred from the facts above recited) was equivalent to an actual delivery to the grantee personally. If, therefore, it were made upon a good consideration and *bond*fide, the title vested in her. But as that is denied by the demandants, *150a new trial is to be granted to try the question, whether the deed were so made, or with intent to delay or defraud the creditors of the grantor.1

1

 See *Powers*v. *Russell,*13 Pick. 69; *Beers*v. *Broome,*4 Connect. R. 248 *Chess*v. *Chess,*1 Pennsylv. R. 32.

1

 See Rev. Stat. c. 73, § 5.