Hosmer, Ch. J.
Facts which shew that the defendant held adversely, by a denial of the plaintiff’s right to possess, or claimed the whole of the premises for himself, are sufficient evidence of an actual ouster. Doe d. Fisher & al. v. Prosser, Cowp. 217. Doe d. Hellings & ux. v. Bird, 11 East, 49.
The defendant claimed all the land demanded, by deed from Joel Northrop jun., executed four years before the levy of the execution, under which the plaintiff derives title. By an acknowledgment in writing, the defendant admitted due service of the plaintiff’s writ, and, at the same time, that he was in possession of the demanded land, “claiming it as his own.” On this admission only, the judge instructed the jury, that they might infer an ouster by the defendant.
It is said, that this admission furnishes no evidence of a disseisin, but only of a possession not adverse to the plaintiff’s claim; and in all events, that it is no acknowledgment of an ouster before the service of the plaintiff’s writ. This is a construction founded on the letter of the transaction, utterly regardless of its spirit and intent; and stamps upon it absurdity, by reducing it to a nullity. That the defendant claimed to possess the land in question adversely, is demonstrated, by his having become the purchaser of it, under a deed from Joel Northrop jun., the former owner; and that he intended to admit a disseisin before the suit brought, is indisputable, because he, for a number of years anterior, had occupied the land, claiming to be the owner; and because the admission was intended to be of this extent, or to be no admission of a material point between the parties. It is uncontrovertibly clear, that they, to prevent unnecessary trouble and expense, adopted this mode of removing from controversy the question of the defendant’s adverse possession, and to restrict the enquiry solely to the plaintiff’s title.
It was agreed, at the trial, that the land described in the return on the plaintiff’s execution, in the year 1816, was the [489]*489property of Joel Northrop jun., and that Northrop granted it to the defendant, in the same year, by a deed duly executed and recorded. It was further agreed, that this land had not been aliened, by the defendant. On the 23d of September, 1820, upon the supposition that the above-mentioned deed was fraudulent in respect of creditors, the plaintiff caused an execution to be levied on the premises; and instead of setting off a definite portion of the property, the officer took an undivided proportion of the dwelling-house. Whether this levy was legal, and invested the plaintiff with a title, was the second question raised in this case. The jury were instructed, that “where an execution cannot be levied on a part of a dwelling-house, by metes and bounds, without great inconvenience to the parties, and without being more injurious to the debtor than it would be to levy the same on an undivided portion thereof, the law permits the creditor to levy on, and cause to be set off, such undivided portion as will satisfy the execution.” This principle, in my judgment, is in opposition to the established law on the subject in question; to the constant and immemorial usage in this state; and to private justice and public convenience.
The statute in force, at the levy of the plaintiff’s execution,
By ancient and immemorial usage in this state, executions have been levied on a definite portion of the debtor’s property; and this, as a general principle, is admitted to be law, in Jessup v. Batterson, 5 Day 368. In this case, a new rule was established, by way of exception, that if several distinct executions are levied, by separate creditors, of more than sufficient value to appropriate the whole of the property levied upon, an undivided proportion may be set off on each of them. The debtor having received the value of all the lands taken, could have no interest in the mode of levy; and the agreement of the creditors to become tenants in common in this novel manner, was considered as being free from exception. This is the only deviation, which has ever been sanctioned, from the common usage of levying executions on definite portions of property, unless in cases of strict necessity. Such were Hinman v. Leavenworth, 2 Conn. Rep. 244. n. and Starr v. Leavitt, 2 Conn. Rep. 243. in which cases it was decided, that the creditor of one tenant in common cannot levy upon and have set off to him a certain part of the common estate by metes and bounds. The determinations were founded on this conclusive reason, that the appropriation of a specific part of the common estate for the debt of one tenant in common, would deprive his fellow tenant of a part of his property, by making a partition of the estate, without his consent or cooperation. It is strictly incompatible with the nature of this estate, because it would be unjust, and in violation of the right of property, to levy upon and set off a distinct part of it, by metes and bounds; and to the necessity arising from these considerations the creditor must yield. Lex neminem cogit ad impossibilia.
To some of the principles advanced by the judge, who delivered the opinion of the court, in the case of Jessup v. Batterson, and which are entirely obiter, I cannot assent. It was said, that “there are undoubtedly cases, where it is incompatible with the nature of the property to set out each part in severalty.” I have admitted, that in cases of strict incompat[491]*491ibility, such as those already mentioned, the above observation is correct.
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Hosmer, Ch. J.
Facts which shew that the defendant held adversely, by a denial of the plaintiff’s right to possess, or claimed the whole of the premises for himself, are sufficient evidence of an actual ouster. Doe d. Fisher & al. v. Prosser, Cowp. 217. Doe d. Hellings & ux. v. Bird, 11 East, 49.
The defendant claimed all the land demanded, by deed from Joel Northrop jun., executed four years before the levy of the execution, under which the plaintiff derives title. By an acknowledgment in writing, the defendant admitted due service of the plaintiff’s writ, and, at the same time, that he was in possession of the demanded land, “claiming it as his own.” On this admission only, the judge instructed the jury, that they might infer an ouster by the defendant.
It is said, that this admission furnishes no evidence of a disseisin, but only of a possession not adverse to the plaintiff’s claim; and in all events, that it is no acknowledgment of an ouster before the service of the plaintiff’s writ. This is a construction founded on the letter of the transaction, utterly regardless of its spirit and intent; and stamps upon it absurdity, by reducing it to a nullity. That the defendant claimed to possess the land in question adversely, is demonstrated, by his having become the purchaser of it, under a deed from Joel Northrop jun., the former owner; and that he intended to admit a disseisin before the suit brought, is indisputable, because he, for a number of years anterior, had occupied the land, claiming to be the owner; and because the admission was intended to be of this extent, or to be no admission of a material point between the parties. It is uncontrovertibly clear, that they, to prevent unnecessary trouble and expense, adopted this mode of removing from controversy the question of the defendant’s adverse possession, and to restrict the enquiry solely to the plaintiff’s title.
It was agreed, at the trial, that the land described in the return on the plaintiff’s execution, in the year 1816, was the [489]*489property of Joel Northrop jun., and that Northrop granted it to the defendant, in the same year, by a deed duly executed and recorded. It was further agreed, that this land had not been aliened, by the defendant. On the 23d of September, 1820, upon the supposition that the above-mentioned deed was fraudulent in respect of creditors, the plaintiff caused an execution to be levied on the premises; and instead of setting off a definite portion of the property, the officer took an undivided proportion of the dwelling-house. Whether this levy was legal, and invested the plaintiff with a title, was the second question raised in this case. The jury were instructed, that “where an execution cannot be levied on a part of a dwelling-house, by metes and bounds, without great inconvenience to the parties, and without being more injurious to the debtor than it would be to levy the same on an undivided portion thereof, the law permits the creditor to levy on, and cause to be set off, such undivided portion as will satisfy the execution.” This principle, in my judgment, is in opposition to the established law on the subject in question; to the constant and immemorial usage in this state; and to private justice and public convenience.
The statute in force, at the levy of the plaintiff’s execution,
By ancient and immemorial usage in this state, executions have been levied on a definite portion of the debtor’s property; and this, as a general principle, is admitted to be law, in Jessup v. Batterson, 5 Day 368. In this case, a new rule was established, by way of exception, that if several distinct executions are levied, by separate creditors, of more than sufficient value to appropriate the whole of the property levied upon, an undivided proportion may be set off on each of them. The debtor having received the value of all the lands taken, could have no interest in the mode of levy; and the agreement of the creditors to become tenants in common in this novel manner, was considered as being free from exception. This is the only deviation, which has ever been sanctioned, from the common usage of levying executions on definite portions of property, unless in cases of strict necessity. Such were Hinman v. Leavenworth, 2 Conn. Rep. 244. n. and Starr v. Leavitt, 2 Conn. Rep. 243. in which cases it was decided, that the creditor of one tenant in common cannot levy upon and have set off to him a certain part of the common estate by metes and bounds. The determinations were founded on this conclusive reason, that the appropriation of a specific part of the common estate for the debt of one tenant in common, would deprive his fellow tenant of a part of his property, by making a partition of the estate, without his consent or cooperation. It is strictly incompatible with the nature of this estate, because it would be unjust, and in violation of the right of property, to levy upon and set off a distinct part of it, by metes and bounds; and to the necessity arising from these considerations the creditor must yield. Lex neminem cogit ad impossibilia.
To some of the principles advanced by the judge, who delivered the opinion of the court, in the case of Jessup v. Batterson, and which are entirely obiter, I cannot assent. It was said, that “there are undoubtedly cases, where it is incompatible with the nature of the property to set out each part in severalty.” I have admitted, that in cases of strict incompat[491]*491ibility, such as those already mentioned, the above observation is correct. In the illustration of his remark, it was further said, that “it would often be the case in setting off a dwelling-house.” The judge then asserts, that “the propriety of the levy, as to this, must depend on the nature of the property, and the circumstances of the case.” No principle is stated, from which it can be known when this novel mode of levying without setting off the property by some definite marks, is admissible. It is said, however, that “if no peculiar injury is designed or effected, there seems to be no imperious reason why such levy should not be made.” To this I cannot subscribe. In every case, there is an imperious reason for adhering to the law as established, and for casting the burden of shewing an exception on the person who would avail himself of it. In the case before us, the judge on the circuit placed the legality of the levy on the ground of preventing great inconvenience to the parties and injury to the debtor, of which the jury at the trial were to be the judges. Of the numerous objections to the principle advanced, I will state a few. First, there is nothing in the nature of a dwelling-house, which requires this departure from established law and usage. The property, without depriving the debtor, or any other person of his rights, is susceptible of a distinct appropriation; and no necessity exists to countenance this novelty in practice. If some inconvenience may arise to individuals, in a particular case, (and what rule will not furnish them?) the general convenience arising from a certain rule, will more than counterbalance it. Secondly, the principle now advanced would destroy all confidence in the rule of levy heretofore adopted. The creditor must not play fast and loose; but if inconvenience in the particular case requires it, the levy, upon the principle advanced, must be on an undivided proportion. There is no criterion, by which it can be ascertained when the levy should be by metes and bounds, and of consequence, it cannot be known, until a jury shall pronounce upon it, whether the levy is good or bad. To the discretion of this tribunal, at a day posterior to this event, the question must be submitted; and until a verdict ascertains the point, the character of the levy is merely conjectural. No creditor of either party, until the test, or adjudication, is furnished, can know, whether he may attach or levy on the property as belonging to his debtor. The collection of his debt must be suspended; or, what is more probable, expen[492]*492sive litigation will be the result. Thirdly, the plaintiff, with his execution of one hundred dollars only, may levy on a dwelling-house of the value of thousands, and having become tenant in common, take possession of the entire mansion, and put in a noxious family. And lastly, to shew the absurdity of this new rule of levy, either party may compel partition at pleasure, and bring the levy back to the original principle of metes and bounds. Earl of Clarendon & al. v. Hornby, 1 P. Wms. 446. Parker v. Gerard, Amb. 236. 1 Madd. Chan. 198, 9. The expectation of perfect freedom from inconvenience, by any rule on the subject of levying executions, is vain; but confident I am, that the most just and convenient mode of proceeding, is the one established. A plain rule, perfectly definite and easy of practice, has long been sanctioned; and although the operation of it may, in some instances, be undesirable, its general result is conformable to justice.
The deposition of Joel Northrop, jun., the grantor of the premises to the defendant, was offered in evidence, and, on the plaintiff’s objection, rejected, on the ground of interest in the event of the suit.
A good title to the land in question Northrop is admitted to have had, at the time of his deed executed to the defendant, and that no alienation of it had been made by him or Canfield, prior to the plaintiff’s levy. It is insisted, notwithstanding, that if the plaintiff recover in this action, the defendant’s eviction will lay a just foundation for a suit against Northrop, on his covenant of warranty. The force of the objection to the proposed witness is dependent entirely on the legal import and effect of the preceding covenant. By this contract, Northrop assured the defendant, that he had a valid title to the property conveyed, existing at the time of the conveyance; and that, by reason of a deficiency in this particular, he should not be lawfully evicted. The covenant, if literally construed, would extend much further than this, and comprise an eviction, even by a tortious entry and expulsion. The covenant of warranty, however, has, long since, received a construction not conformable to its letter, but to the spirit and intent of it; and an eviction, to subject the covenanter, must be lawful, and by elder or superior title. In the case of Wotton v. Hele, 2 Saund. 175. this point was adjudged; and, as was remarked by the learned editor of Saunders, in a note to that case, (p. 181. a.) it “has ever been considered a leading [493]*493authority, to shew, that it is necessary, for the reasons therein given, that the plaintiff should state in his declaration, in some manner, that the person evicting had a lawful title before, or at the time of, the date of the grant to the plaintiff.” The same principle was established in Noke's case, 4 Co. Rep. 81., in Kirby v. Hansaker. Cro. Jac. 315., and in Mosse v. Archer, 3 Mod. 135. and it is too late even to be questioned. Now, the eviction of Canfield in the plaintiff’s suit would not be evidence that Northrop had not a lawful title to the premises, at the time of his deed to the defendant; and the admitted facts in the case incontrovertibly shew, that, at that time, he was the unquestionable owner of the land. His covenant, then, has been kept, and not broken; and the defendant’s eviction would furnish no ground of suit against him. So far from this, the plaintiff’s claim, as the return on his execution must ever evince, is founded on the validity of a title in Northrop, as late as the year 1820. The ground of it really is, that Northrop had a legal title to the premises, and, so far as respects his creditors, has never parted with it. In the event of the suit before us, I am clear that he had no interest; and that his deposition should have been admitted.
Brainard, J. was of the same opinion.
Chapman, J.
The principal question, in this case, is, whether the property levied upon was of such a nature, as that by the requirements of law, it must be taken and set off, by metes and bounds. The creditor has levied on an undivided proportion; and he has done so, because he supposed, and the jury have so found, that he could not levy and set it off, by metes and bounds, without doing a serious injury to the debtor.
It is admitted, that the right, which the creditor has to levy upon real estate, is derived from statute; and if that admits of no other mode of levying, than by metes and bounds, the levy in question, is irregular and void. It should be kept in view, that the court charged the jury, that the validity of the levy depended on the fact, that a levy by metes and bounds, would greatly prejudice the debtor. That the latter mode must be adopted, in all cases, where manifest injustice would not be done, was admitted.
If the statute in question, had not received a construction, extending beyond the words of it, and sufficiently extensive [494]*494to embrace the present case, doubts might be entertained respecting the validity of the levy. The statute, in the terms of it, gives no right to levy upon lands, holden by a tenant in common, by setting off an undivided proportion of it; and yet the supreme court have repeatedly decided, that such a mode, of levying, is not only admissible, but that a levy by metes and bounds, would be void. So, a levy on a part of an equity of redemption, and setting it off by metes and bounds, has been holden to be void. In the first case, the court proceeded upon the ground, that the creditor could not make himself either co-tenant with the debtor, or his co-tenant in any particular part; that a levy, by metes and bounds, would produce that effect; and that the inconvenience would be so great, that such a levy would be invalid.
It does not appear, that, in those cases, it occurred to the court, that the statute warranted no mode of levying, but by metes and bounds. They seem to have supposed, that a mode of levy, by which the execution was satisfied, and with the least injury to the debtor, if not within the letter, was within the meaning and equity of the statute.
By the common law, dower must be set off, by metes and bounds; but where the subject matter is of such a nature, as to require a different mode, the law admits of it; as in the case of setting off a part of a grist-mill. In such case, a proportion of the time, or of the toll, is set off.
I need not now insist on the inconveniences, which will follow, if a strict construction be given to the statute, in this case; because they will present themselves to all, on the least reflection. I need not mention, the cutting up of dwelling-houses, into a thousand distinct parts, by as many different creditors; nor the little value of the property thus acquired, to the creditor himself. In some cases, an inch square, or any less quantity, (according to the amount of the debt) must be set off, from the top to the bottom of the house.
If the statute must receive a literal construction, grist-mills, saw-mills, as well as factories of every kind, (if they can be levied upon at all,) must be subject to the same rule. They can be taken only by metes and bounds, because the statute mentions no other mode of taking them. The creditor, who can embrace the water-wheel within his levy, must, therefore, deem himself fortunate; since this would [495]*495give him a controul over all subsequent levying creditors, as well as the debtor, if any part should be left to him.
I am therefore of opinion, that, under the circumstances of this case, the levy was valid.
Peters and Bristol, Js. not having been present when the case was argued, gave no opinion.
New trial to be granted.
Stat. Conn. 282. ed. 1808.