
    STRAFFORD, SEPTEMBER TERM, 1798.
    Caleb Hodgdon v. Pitt Lougee.
    
    The partial reversal, on review, of the result reached in the original suit, does not affect the levy made under the original judgment; and a levy on the same premises, to satisfy the judgment rendered on review, has no greater effect than a levy on a judgment recovered in any other action.
    A. recovered judgment against B-, and levied execution on B.’s real estate. B. recovered judgment in review against A., for an amount equal to about ten-elevenths of the damages included in the original judgment. A. then mortgaged the premises to C., who knew of the judgment in review, and of B.’s intention to levy on the same premises. Subsequently, and within the year for redeeming from the levy of A.’s execution, B. levied on the premises.
    
      Held, that G.’s mortgage prevailed over B.’s levy.
    This was ejectment for two hundred acres, viz., Lot No. 55, in Barnstead.
    The plaintiff claimed to hold under deed of mortgage from John Drew, executed Sept. 26, 1795, received and recorded same day, about nine o’clock, P.M.
    John Drew’s title was by levy of execution on judgment against Andrew Drew and Jonathan Williams, April Term, 1794. Execution issued May 12, and was levied May 15, and returned to the office October, 1794. Damages recovered were ¿62,658 Is. 11c?. = $8,860.32. J. Williams and A. Drew held under the same John Drew by deed, May 29, 1784.
    The defendant traced his title from the same John Drew, thus: He held under Thomas Pinkham, by deed executed April 6, 1796. Thomas Pinkham held under deed from Jonathan Williams and Andrew Drew, Feb. 11, 1796. They claimed the right to convey the estate by deed from John Drew, May 29, 1784, and contended that their title was not defeated by the levy of John Drew in May, and completed by return made to the office October, 1794, because they reviewed the suit on which that judgment was recovered, and at September Term, 1795, reversed the judgment in part, that is for $8,066, leaving, of the damages, to the original plaintiff, $794 only. They obtained execution for this sum, $8,066 damages and costs, and before Sept. 28, 1795, completed a levy or relevy on the same land. The officer entered on the premises to commence his levy about eleven o’clock at night on Sept. 26. This judgment was known to Ilodgdon, and that it was the intention of Drew and Williams to relevy. The defendant also contended that this conveyance to Hodgdou was fraudulent, being intended to cover the property and prevent Andrew Drew and J. Williams repossessing themselves of it again.
    [Argument por Dependant.]
    1. The judgment in favor of John Drew, obtained in April, 1794, and to satisfy which the levy was made, has been found to be erroneous, at least as to ten-elevenths of the damages recovered. If it had been reversed in whole, this would have destroyed the levy. The effect of a reversal on review must be similar to that of a reversal on a writ of error.
    It may be said that this could not be the case where goods were sold, and the debt levied by the sale of them. Perhaps the officer would be justified for selling the goods; but the creditor would clearly be obliged to refund the value, — either on suit brought, or execution, by way of being restored to what he had lost.
    If lands were taken, the easiest way of restoring the person injured by the erroneous judgment would be to declare the levy void. So, if the body were holden, this must be the case ; otherwise both parties might be imprisoned for damages which never ought to have been given.
    2. But, if it should be thought a reversal in part was so far of the nature of an original suit that the plaintiff in review could only have execution for the sum recovered back, still it may, in the second place, be argued that the relevy in this case destroyed the levy, because it was made before an indefeasible estate vested in the execution creditor. The other party, that is, in this case, Drew and Williams, may redeem at any time within a year from the return of execution into the office, that is, till the-day of October, 1795. Discounting, or even the offer to discount, the amount of the levy on the execution was equivalent to a redemption, and this discount was made before the year expired. It may be said that John Drew had, before that time, sold the premises to the plaintiff. But' he could not sell a perfect estate when he had only a defeasible one; and it must be admitted that a payment of the sum at which the land was appraised, and interest, to John Drew, would have defeated the title of Hodgdon. To Hodgdon, then, it is the same thing whether this redemption be by payment of money, or discount on execution. Unless this construction be admitted, complete justice cannot be done. The defendant loses his land upon an erroneous judgment, and it is to no purpose that he has execution against John Drew. He never can obtain satisfaction. It may, I think, be fairly argued that, until the expiration of the year, the creditor only holds the land as a pledge or security for his debt. If this be so, is not bringing the judgment of a Court, declaring that the debt for which the pledge is taken is not due, equivalent to payment of the debt ?
    3. But this may be considered as fraudulent in Hodgdon. He purchases when he knows the title is defeasible, and when he knows that Drew and Williams have an equitable right to the land.
    
      
       This case, of earlier date than those reported ante, is inserted here on account of its bearing on the next case, Haven v. Libbey.
      
    
   The Court-

were of opinion that the evidence in this cause did not support the charge of fraud ; that the plaintiff, having a demand against John Drew, had a right to take this land in security; and that he took it subject only to be defeated by redemption, which could only be by the payment of principal and interest in money ; that a relevy was not a redemption, and consequently that the plaintiff was entitled to recover.

The jury were of that opinion, and found the defendant guilty,

[ Conditional judgment for plaintiff'.]

[Abstract of tub above Decision in Manuscript Digest.]

“ When a creditor acquires a title by levy of execution, he may sell before the year expires; and the purchaser’s title is not affected by reversal on review in part or in whole (as it would be on error), but only by redemption. A levy within the year by the debtor against the creditor is not equivalent to a redemption, as it respects a purchaser under the first levy. A purchase by a bona fide creditor is not fraudulent as against the former owner, though the purchaser knew of the reversal of the judgment in part, and intention to levy.”

[Extract from Judge Smith's Manuscript Essay on the Act Relative to Levy of Executions on Lands, passed Feb. 15, 1791.]

“ It has been determined in this State (Strafford, February Term, 1798, or September, 1798, Hodgdon v. Lougee) that a reversal of a judgment on review in part does not affect a levy under the judgment so reversed. And it seemed to be the opinion of the Court that a total reversal on review would not at all affect the levy ; that the only remedy of the party obtaining the reversal was his execution to recover back the debt levied on, which he might levy on the same estate if not conveyed by the creditor.
“ It seemed also to be settled in that case that a sale by execution creditor before the right of redemption was gone was good, and placed the grantee precisely on the ground his grantor stood on.
Qucere. Gan original creditor, on total reversal, within a year, on review brought by the debtor, hold .the land in suit by the debtor against him ? It seems unreasonable to say that he may. It is a different consideration, perhaps, where the creditor has transferred his title acquired by the levy.”

[Judge Smith’s Note to the Manuscript Keport of Footman v. Leathers et als., Strafford, September Term, 1803.]

“ A redemption, it is conceived, would inure to the benefit of Jonathan Williams alone, even if the redemption were with the money of Andrew Drew.
“ The mere levy on judgment, Drew and Williams, would vest lands levied on in Drew and Williams.
“And it may be questioned whether a relevy alters thecase. On first levy Jonathan Williams had claim against Andrew Drew for excess above moiety satisfied out of his estate. In the judgment on review, both original defendants interested; consequently both interested in the avails of the judgment. Relevy is not a remitter to first title. It is the acquisition of a new title, especially if equity of redemption expired. Reversal on error, or redemption, is different; there the judgment and levy are avoided, and things are as though no such judgment had been given, or levy made.
“And yet this doctrine, that the property vests equally in' the persons named in the judgment, in case of a review where the first judgment was satisfied by one of the parties, or in any other case^where the parties are unequally interested in the judgment, would operate unjustly. The moiety of the creditor, who in equity had no claim, might be taken by his other creditors. The ground of issuing execution in the case of review is that there has been satisfaction. He that made the satisfaction ought in equity to receive the avails. And yet this would be difficult in practice.” 
      
       See Prov. Law, 145, last clause. Judgment recovered without actual notice to defendant, and levy; defendant having review within a year. In such case, the land levied on not alienable till after one year, or new trial; implying that, in other cases, the land levied on is alienable immediately.
     
      
       Under the two judgments in the suit, Drew v. Williams and Drew, there appear to have been a levy and a relevy on several tracts of land. The case of Footman v. Leathers et als. is_ understood to have grown out of such levy and relevy on land in Lee. Upon the trial it appeared that Jonathan Williams owned the premises at the time of the original levy. The-Court, speaking of the effect of the levy under the judgment in review, said, that it was “ at least reasonable that the levy should give the whole laud to Jonathan Williams, because on the judgment in the same suit it was taken from him.”
      It is believed that it was not directly decided in that case whether the levy on the judgment in review, in favor of Andrew Drew and Jonathan Williams, gave Jonathan Williams the whole land, or only a title to a moiety.
     
      
       As to reviews, see note to Haven v. Libbey, reported post.
      
     