The opinion of the Court was drawn up by
Tenney J.
The records show, that when Rice extended his execution upon the land in controversy, the debtor had the title of David Gullifer, who, being in possession in 1820, conveyed to him, warranting against all those, who should claim from, by or through said Gullifer, in a deed duly registered, and also the title of John Hancock and Williams Emmons, by deeds with covenants of warranty. The levy was made on the 30th of October, 1840, the execution with the doings thereon, was duly returned and recorded in the registry of deeds within three months after the levy; and on the 5th day of April following, Rice executed and delivered a deed of the same land to the defendant. The plaintiff claims under Gullifer by a deed dated Dec. 22, 1831, of the land in question, to him and another; under which the grantees therein named went into possession, and one or both so continued until the levy of the execution, claiming it as their own, and the plaintiff has kept up a fence between the lot and the one adjoining, and also against the road, and has taken the crops, his possession having continued after the levy till the date of the writ.
It is contended for the plaintiff, that at the time of the levy the debtor in the execution was disseized, and the creditor could obtain nothing by the levy. But if the levy had the effect to pass the title from the debtor to the creditor the seizin of the latter was instantaneous only, and gave him no such right, as to enable him to convey to the defendant; consequently the acts complained of in the writ were a trespass upon the plaintiff’s possession. It is insisted in support of these propositions, the levy of an execution can give a creditor no rights which he cannot receive by a deed from the debtor; and that by the latter, nothing can pass, while the grantor is disseized. It is true, as the law was at the time of [323]*323the levy, the deed alone of a person disseized would not have transferred the title, so as to enable the grantee to maintain a writ of entry in his own name; but a deed delivered upon the land, by the grantor, who at the time, makes an entry thereon having the right of entry, will so far purge the disseizin as to give operation to the deed as a feoffment. Knox v. Jenks, 7 Mass. R. 488; Oakes v. Marcy, 10 Pick. 195. After the delivery of a deed with covenants of warranty, from one, who at the time was disseized, an action may be maintained in his name, and a judgment entered, upon the ground that nothing passed thereby. Walcott & al. v. Knight & al. 6 Mass. R. 418. And this judgment and possession thus obtained, may enure to the benefit of the grantee. The doctrine of the case of Bartlett v. Harlow, 12 Mass. R. 350, cited for the plaintiff, is inapplicable; the question of the effect of a dis-seizin in an extent upon the debtor’s real estate was not there presented; but it was decided, that an execution against one holding lands in joint tenancy or tenancy in common, cannot be extended on a part of the lands so holden, by metes and bounds; it not being in the power of the owner of such an estate to convey by deed a part of the land so owned, by metes and bounds.
The statute of 1821, c. 60, § 27, provides, that the creditor may levy his execution upon the real estate of his debtor, in the mode therein pointed out, and the “ execution being returned with the doings thereon into the clerk’s office, and before such return into the clerk’s office or afterwards, and within three months, the same shall be recorded in the registry of deeds in the county where the land lies, shall make as good title to such creditor or creditors, his or their heirs or assigns, as the debtor had therein.” The disseizin of the debtor does not take away his title, so long as the right of entry remains; it is still his real estate; and by this statute is liable to be taken upon execution in payment of his debts; and it is well settled, that when land is liable to be taken for the owner’s debts, and the execution is properly extended, and the proceedings duly recorded, the creditor becomes thereby actually [324]*324seized, whoever may be in possession; and this seizin will enable him to maintain a writ of entry or an action of trespass at his election. Gore v. Brazier, 3 Mass. R. 523 ; Nickerson v. Whittier, 20 Maine R. 223. Two adverse parties cannot be seized of the same land, at the same time; and if the person who had disseized the debtor, that is the owner of the land, is in possession at the time of, and after the levy, he cannot have the legal seizin by virtue of that possession ; the creditor may if he pleases, for the purpose of having his remedy, consider himself disseized b.y such person, and may maintain a writ of entry, counting on his own seizin ; or he may have his action of trespass against him for acts done after the levy. It follows from these principles, that the disseizin before existing, is purged by the levy; and that the continuance of the possession afterwards by the wrongdoer, which was no impediment to the officer in giving actual possession and seizin tefthe creditor, cannot constitute a disseizin, until its character is so changed, that it amounts to an ouster of the creditor. If the possession is mixed, the seizin is according to the title. The seizin acquired by the creditor is presumed to continue, till that presumption is controlled by evidence; and he can convey his title to another by deed.
It is insisted that this construction of the law will defeat the rights intended to be secured to those having “ certain equitable claims arising in real actions,” by Stat. 1821, c. 47. That act provides for the appraisement of the value of the buildings and improvements made by those, who have held the land in the manner therein mentioned, for the term of six years and upwards, in actions brought for the recovery of the lands so holden; and those in whom is the title cannot have possession thereof till they have paid the sum at which the buildings and improvements have been appraised; but there is nothing in this act which abridges in any manner the right of the owner of such lands to enter thereon and withhold the possession from those who have held the same for six years, without resorting to his action. If the legislature had intended to prohibit the proprietor from taking possession of lands thus [325]*325holden, excepting upon a writ of possession upon a judgment, they could have so provided. But they manifestly did not so intend, for in c. 62, § 5, it is enacted, “ That if any person shall make such entry into any lands, tenements or heredita-ments, which the tenant or those under whom he claims have had in actual possession for the term of six years or more, before such entry, and withhold from such tenant the possession thereof, such tenant shall have the right of recovering of him so entering, in an action for money laid out and expended, the increased value of the premises by virtue of the buildings and improvements,” &c.
In the case before us, if it be true, as the plaintiff contends, that the debtor in the execution was disseized when the same was levied, the title was in him, and the right of entry remained ; and by the extent upon the land, the creditor acquired all his title and the actual seizin. There is no evidence of any ouster afterwards, but we must presume, that the creditor held the possession, which he received from the officer; and therefore was empowered to convey to the defendant the title obtained under the levy.
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The opinion of the Court was drawn up by
Tenney J.
The records show, that when Rice extended his execution upon the land in controversy, the debtor had the title of David Gullifer, who, being in possession in 1820, conveyed to him, warranting against all those, who should claim from, by or through said Gullifer, in a deed duly registered, and also the title of John Hancock and Williams Emmons, by deeds with covenants of warranty. The levy was made on the 30th of October, 1840, the execution with the doings thereon, was duly returned and recorded in the registry of deeds within three months after the levy; and on the 5th day of April following, Rice executed and delivered a deed of the same land to the defendant. The plaintiff claims under Gullifer by a deed dated Dec. 22, 1831, of the land in question, to him and another; under which the grantees therein named went into possession, and one or both so continued until the levy of the execution, claiming it as their own, and the plaintiff has kept up a fence between the lot and the one adjoining, and also against the road, and has taken the crops, his possession having continued after the levy till the date of the writ.
It is contended for the plaintiff, that at the time of the levy the debtor in the execution was disseized, and the creditor could obtain nothing by the levy. But if the levy had the effect to pass the title from the debtor to the creditor the seizin of the latter was instantaneous only, and gave him no such right, as to enable him to convey to the defendant; consequently the acts complained of in the writ were a trespass upon the plaintiff’s possession. It is insisted in support of these propositions, the levy of an execution can give a creditor no rights which he cannot receive by a deed from the debtor; and that by the latter, nothing can pass, while the grantor is disseized. It is true, as the law was at the time of [323]*323the levy, the deed alone of a person disseized would not have transferred the title, so as to enable the grantee to maintain a writ of entry in his own name; but a deed delivered upon the land, by the grantor, who at the time, makes an entry thereon having the right of entry, will so far purge the disseizin as to give operation to the deed as a feoffment. Knox v. Jenks, 7 Mass. R. 488; Oakes v. Marcy, 10 Pick. 195. After the delivery of a deed with covenants of warranty, from one, who at the time was disseized, an action may be maintained in his name, and a judgment entered, upon the ground that nothing passed thereby. Walcott & al. v. Knight & al. 6 Mass. R. 418. And this judgment and possession thus obtained, may enure to the benefit of the grantee. The doctrine of the case of Bartlett v. Harlow, 12 Mass. R. 350, cited for the plaintiff, is inapplicable; the question of the effect of a dis-seizin in an extent upon the debtor’s real estate was not there presented; but it was decided, that an execution against one holding lands in joint tenancy or tenancy in common, cannot be extended on a part of the lands so holden, by metes and bounds; it not being in the power of the owner of such an estate to convey by deed a part of the land so owned, by metes and bounds.
The statute of 1821, c. 60, § 27, provides, that the creditor may levy his execution upon the real estate of his debtor, in the mode therein pointed out, and the “ execution being returned with the doings thereon into the clerk’s office, and before such return into the clerk’s office or afterwards, and within three months, the same shall be recorded in the registry of deeds in the county where the land lies, shall make as good title to such creditor or creditors, his or their heirs or assigns, as the debtor had therein.” The disseizin of the debtor does not take away his title, so long as the right of entry remains; it is still his real estate; and by this statute is liable to be taken upon execution in payment of his debts; and it is well settled, that when land is liable to be taken for the owner’s debts, and the execution is properly extended, and the proceedings duly recorded, the creditor becomes thereby actually [324]*324seized, whoever may be in possession; and this seizin will enable him to maintain a writ of entry or an action of trespass at his election. Gore v. Brazier, 3 Mass. R. 523 ; Nickerson v. Whittier, 20 Maine R. 223. Two adverse parties cannot be seized of the same land, at the same time; and if the person who had disseized the debtor, that is the owner of the land, is in possession at the time of, and after the levy, he cannot have the legal seizin by virtue of that possession ; the creditor may if he pleases, for the purpose of having his remedy, consider himself disseized b.y such person, and may maintain a writ of entry, counting on his own seizin ; or he may have his action of trespass against him for acts done after the levy. It follows from these principles, that the disseizin before existing, is purged by the levy; and that the continuance of the possession afterwards by the wrongdoer, which was no impediment to the officer in giving actual possession and seizin tefthe creditor, cannot constitute a disseizin, until its character is so changed, that it amounts to an ouster of the creditor. If the possession is mixed, the seizin is according to the title. The seizin acquired by the creditor is presumed to continue, till that presumption is controlled by evidence; and he can convey his title to another by deed.
It is insisted that this construction of the law will defeat the rights intended to be secured to those having “ certain equitable claims arising in real actions,” by Stat. 1821, c. 47. That act provides for the appraisement of the value of the buildings and improvements made by those, who have held the land in the manner therein mentioned, for the term of six years and upwards, in actions brought for the recovery of the lands so holden; and those in whom is the title cannot have possession thereof till they have paid the sum at which the buildings and improvements have been appraised; but there is nothing in this act which abridges in any manner the right of the owner of such lands to enter thereon and withhold the possession from those who have held the same for six years, without resorting to his action. If the legislature had intended to prohibit the proprietor from taking possession of lands thus [325]*325holden, excepting upon a writ of possession upon a judgment, they could have so provided. But they manifestly did not so intend, for in c. 62, § 5, it is enacted, “ That if any person shall make such entry into any lands, tenements or heredita-ments, which the tenant or those under whom he claims have had in actual possession for the term of six years or more, before such entry, and withhold from such tenant the possession thereof, such tenant shall have the right of recovering of him so entering, in an action for money laid out and expended, the increased value of the premises by virtue of the buildings and improvements,” &c.
In the case before us, if it be true, as the plaintiff contends, that the debtor in the execution was disseized when the same was levied, the title was in him, and the right of entry remained ; and by the extent upon the land, the creditor acquired all his title and the actual seizin. There is no evidence of any ouster afterwards, but we must presume, that the creditor held the possession, which he received from the officer; and therefore was empowered to convey to the defendant the title obtained under the levy.
The plaintiff was not permitted to offer proof, that the deed from Gullifer to Page was fraudulent as against attaching creditors. A deed duly executed, delivered and recorded, may pass the title to the grantee, and it may be effectual also against a subsequent purchaser, where it cannot take away the right of an existing bona fide creditor, who attaches after-wards. The plaintiff made no offer to prove that the deed of Gullifer to Page was fraudulent, excepting as against creditors; he did not present himself as such, or as claiming under one, and the evidence was properly excluded.
The proof offered, that when Gullifer delivered his deed to the plaintiff, that Page informed the grantees, that the title was in the grantor, was not legally admissible. The title, as disclosed by all the deeds, was in Page, they were on record, and were absolute conveyances; the plaintiff was therefore charged with constructive notice, at least, of their existence. There is no suggestion, that there was any document or record, [326]*326which passed the title back to Gullifer. To receive and give effect to such proof, as that offered and rejected, would be an abrogation of the statute of frauds, and allow title to real estate to rest on a very uncertain basis. If Page held a mortgage for security of a debt, such declaration might be evidence of the payment thereof; or, if it turned out, that he had given a deed, which was not recorded, at the time of the delivery of the deed from Gullifer to the plaintiff, and the creditor was informed of the debtor’s declaration before the attachment, it would be different. Nothing of that kind is exhibited in the case, and on no principle could the evidence have.been received.
Other points were raised, growing out of the evidence introduced by the defendant, and that offered by the plaintiff to control it, and rejected, which it becomes unnecessary to discuss or consider. By the agreement of the parties, a
Nonsuit must be entered.