
    Matthew Allen versus Oliver Thayer, Jun.
    Land of A, in the occupation of B, his lessee, is levied upon, and B continues his occupation under the execution creditor, paying him the rent agreed. After two years, B purchases the fee of the execution creditor. Afterwards, a deficiency in the levy being discovered, another creditor of A levies his execution on the same land, and holds it against the former creditor, and B, who claimed under him.—A has no action against B for the use and occupation between the several levies; not in assumpsit, for want of privity; nor in trespass, because by the first levy A was disseised.
    
      This was an action of assumpsit for the rents and profits of certain lands in Williamsburgh in the county of Hampshire; and was submitted to the determination of the Court upon the following facts agreed by the parties:—
    Previous to the 12th of October, 1813, the plaintiff was the owner of two certain tracts of land in Williamsburgh, * containing 59 and 26 acres respectively. On the 24th [ * 300 ] of April, 1813, the defendant entered into possession of both the tracts, under a parole agreement with one Matthew Coffin, to deliver him one half of the crops growing thereon, in the nature of rent therefor, for the term of one year. On the said 12th of October (the defendant having previously delivered the moiety of the crops to Coffin in pursuance of the said agreement), the president, directors and company of the Northampton bank, having recovered a judgment against the plaintiff Allen, sued out their execution thereon, and delivered the same to a deputy sheriff of the county of Hampshire; who returned thereon that, for want of money or other personal property of the judgment debtor, he had, by the direction of the creditors’ attorney, caused three disinterested and discreet freeholders of said county to be sworn, who had viewed and appraised the real estate of the debtor therein described at the sum of, &c. (which is the same land, for the rents of which the present action is brought) ; and that he had delivered possession and seisin thereof to the said attorney of the creditors. But it did not appear in the return by whom the appraisers, or either of them, were chosen. The said judgment creditors forthwith entered upon the said lands, and expelled the said Thayer therefrom. Immediately after the completion of the levy, with the assent of the said judgment creditors, Thayer reentered upon the land, and continued in possession thereof until the 24th of April, 1814; when he took a lease from the said president, &c., under which he continued to occupy the same, paying an annual rent of one hundred dollars, until the 20th of February, 1816 ; when he purchased the said lands from the said president, &c., paying for the same a full and adequate consideration; and under that purchase supposed himself entitled to, and claimed to hold thenceforward an estate in fee simple.
    In the month of April, 1820, Ezra Allen and Joseph Al len, having severally recovered judgment against the * plaintiff, Matthew A., levied their executions upon the [ * 301 ] same lands as the property of the said Matthew, in due form of law.
    From the said 26th of February, 1816, until the commencement of this action, the defendant continued to occupy the said lands, claiming to be the owner thereof.
    
      At the time of the levy of the execution in favor of the Northampton bank, and thenceforward until within a few months before the commencement of this action, all parties supposed the fee of the lands to have vested in the bank by virtue of the levy; and the defendant was never disturbed or molested in his enjoyment thereof, either by the plaintiff or any person claiming under him, until the levy of the executions in favor of Ezra and Joseph Allen, in April, 1821.
    If upon these facts the plaintiff was entitled, in the opinion of the Court, to recover the whole or any part of the rents and profits growing out of said lands within six years next before the commencement of this action, his damages were to be assessed by a jury ; otherwise he was to become nonsuit.
    
      Howe, for the plaintiff.
    
      L. Strong, for the defendant.
   The opinion of the Court was delivered at the following April term by

Putnam, J.

By the agreement of the parties judgment is to be rendered for the plaintiff, if, upon the facts stated, he is by law entitled to recover for the rents which he claims. With regard to this action of assumpsit, to enable the plaintiff to recover, there must be evidence of a contract or undertaking of the defendant, either express or implied. An express promise is not suggested; and the facts negative a promise by implication of law. During the time that the defendant was in possession, he was claiming the estate, either as owner in virtue of the conveyance from the bank to him, or as the tenant of the bank. [ * 302 ] * The title of the bank has proved defective; because it did not appear by whom the appraisers, who appraised the land upon the execution of the bank against the present plaintiff, were chosen. But the discovery of that defect created no privity of contract between the plaintiff and the defendant. In point of fact, the plaintiff had no concern whatever with the defendant. It was the bank, which interfered with the defendant’s estate; and the plaintiff may have a remedy against the bank, upon the principles recognized in the case of Cummings vs. Noyes, 10 Mass. Rep. 436. We are satisfied that the defendant is not liable in assumpsit.

But if the action were trespass, there is a difficulty in the plaintiff’s way, which is insurmountable. The bank obtained seisin and possession of the estate wrongfully. The plaintiff might have declared against them as disseisors ; he might have reentered upon them. But whatever remedies he might have had, it is certain he was turned out, and the bank were put in or took the actual possession.

Now a disseisee cannot maintain trespass for a wrong done after the disseisin, and before a reentry; for the freehold is in the disseisor all the time after the disseisin; excepting in cases where the estate of the disseisee shall have determined, so that he could not reenter; as where he was a tenant for years, and his term expired, or was tenant per outer vie, and the cestui qui vive died. But no such impediment existed in the case at bar.

From all which seems it to the Court clearly that the plaintiff cannot recover. Not in assumpsit, for want of privity of contract; and not in trespass, because he was ousted from the possession .

Plaintiff nonsuit. 
      
       [Vide Cummings & Ux. vs. Noyes, 10 Mass. 433.—Fletcher & Al. vs. M'Farlane, 12 Mass. 43.—Fitchburg C. M. Corp. vs. Melven Al., 15 Mass. 268; and see the cases cited in the notes to the cases.—Ed.]
     