
    Asa Smith against John Starkweather.
    
      A. and B. being jointly seised of certain lands, in fee, mortgaged the same to C.,- D. and E. after-wards, severally, attached the lands, in suits against A. for his debts alone, and each obtained final judgment and execution in such suits; JO. prior to the discharge of the mortgagee’sclaim, caused Ids execution to be levied on the land, and the levy completed ; af-terwards, before the payment of the mortgage debt, and before the mortgagee hadre-conveyedthe land to the mortgagors, E. commenced the levy of his execution, or the land, but the land was not appraised and set off, and the levy completed, until after such payment and re-conveyance ; prior to such reconveyance, and subsequent to the attachments of JO. and E., A. and B. assigned their equity of redemption to F. : Held, 1 .That E., by the levy of his execution, acquired the legal title to the land, as tenant in common with B.
    
    2. That neither I). by the levy of his execution, nor F., by virtue of the deed of assignment, acquired any legal title to the land.
    3. That the rights of É. could not be affected by any change of the title of A., between the commencement and completion of the levy of his execution.
    
      4. That one tenant in common, though he declare on his own seisin and possession, .without noticing the right of his fellow' commoner, may maintain ejectment against, a mere disseisor,
    
      5. That a grant of an interest in lands, though not recorded, is valid between the garties, and all persons claiming under them.
    MOTION fora new I rial.
    This was an action of <ti -scj.-.in, liroa^hi ⅛ Smith cg.Vmsi Starkweather, to recover the bin rind po-<os; =biit of a certain parcel of laad in Preston. The plaintiff claimed title to tiie demanded premises, by virtue of the levy of an execution in his favour against one Nathan Peters ; and on trial before the Superior Court, obtained a verdict and judgment in his favour.
    On (ho trial, it appeared, that on the 22d day of December, 1794, Nathan Peters, and Lois, his wife, were seised and possessed, in fee, of a tract of iand, containing 127 acres, which included the land in question ; and on the same day, Peters, and his wife, mortgaged the whole tract to Alexander Stewart. ; that afterwards, Stewart conveyed all his interest in the hind, to the defendant, who went immediately into possession ; that on the 14th day of November, 1807, Jeremiah Halsey, and the plaintiff, Smith, severally attached the whole tract, by suits in their own favour, respectively, against Peters, Halsey's attachment having been served first ; that in November, 1808, Halsey and Smith obtained final judgment and execution, in their respective suits, against Peters, the former for about 100 dollars, and the latter for about 400 dollars ; that on the 25th day of January, 1809, Halsey caused Iris execution to be duly levied on the whole tract, arid all the right, title and interest of Peters therein, except six acres, cue quarter and thirty rods, at the south-east end, was duty appraised and set ofi to him, in satisfaction of his t \milioi: which was duly returned and recorded in the proper oilier*, on the 1st arid 2d days of February, 1800; that after such levy was made, and the officer’s return of the execution was completed and signed, hut. before it was returned to the proper offices for record, vi?, on the 30th day of January, 1809, Smith, the plaintiff, in the name of Veters, tendered to the officer hohiing the execution, the full amount thereof, with all costs of tiic levy ; that the officer refused to receive the money, as Halsey. previous to the time of the tender, had conveyed all Ins interest in the land attached to Isaac Williams ; that on the 27th day of March, 1809, within four months after fina! judgments, Smith, the plaintiff, caused his execution to be levied on the whole tract of land above men tamed ; and on the 3d day of May, 1309, fifteen acres, one quarter and twenty-nine rods, being part of the aforesaid tract, and being the land in quest ion. was duly appraised and set off to 1dm in fee, in satisfaction of hi* execution, and the record of liiis levy, was completed on the 1 Oth day of May 1809 ; that on the 10th day of April, 1809, Starkweather, the defendant, the debt originally Cue to Slav art having been paid, released all his rigid and title to the whole tract, to Pi ters and his wife; that they received the deed, but did not procure it to be recorded ; that Peters and his wife, on the 6th day of October, 1808, by deed of release, conveyed to Coidington Billings, all their interest in the whole tract of land ; which last mentioned deed, was recorded on the Mfh day of April, 1809. Peters and his wife, from the time of the execution of their mortgage deed to Stewart, to the time of the execution of the defendant’s release deed to them, possessed no other interest in the land, than merely the equity of redemption.
    The plaintiff, from the preceding facts, claimed, that hi title to the land in question, was complete ; and the defer dant resisted this claim, as tenant of Williams, who Was Uni scy's grantee. He contended, that by the levy of Ealsry ■ execution, and his conveyance of his interest in the land la 
      ifi'Hnais, he, iViUiams, thereby became vested with the legal ime - and if Williams' (ills: should fail, í hat Billinas, by vir- ’ _ _ '■ iu ft of 1 lie fiord from Pita's and his wife, ought to tie consul-wed as the legal pronsieiO'' of tin; land ; so Hint in either case, the plaintiff was not entitled to recover.
    The court, in their charge, instructed the jury, that upon the facts ¡ti (¡ic caso, tin; hi tv was so, that the plaintiff was emitted to recover the di manded premises, and directed them to find a verdict for the plaintiff; and the jury found a verdict accordingly : Whereupon, the defendant moved for a new trial, on the ground of a misdirection; which motion was reserved for the opinion of the nine Judges.
    
      Daggtlt and Goddard, argued in support of the motion.
    
      Hosmer, contra.
   Trumbull, J.

(After stating the case.) In the present action, the plaintiff declares, that he was well seised and possesses! of the. lands demom'.ed. in his own right, in fee, until be was disseised by the d( fondant. The only question before us, is, whether the title, at law, is vested in the plaintiff, or in some other of the claimants ?

The defendant, after the delivery of his deed of release to Peters and his wife, had no claim of title to the laud; for the deed, though not recorded, is valid between the parties, and as it respects all persons claiming under them. Neither Halsey, Williams, nor Billin'ss, have obtained any legal title. -Vt the time when their claims, either by deed or levy of ex-rcuiiou, commence. Peters and his wife had only an'equity ol redemption in the land; and nothing more could be acqui-icd from them, by levy or conveyance.

The questions agitated a! the bar, whether the tender to ihe officer on Halsey’s execution, after he hat! completed the |r vy except recording, is valid for the purpose of defeating his title ; and whether the plaintiff, by virtue of his attachment, had such an interest, as would give him a right to tender in the names of P<Itrs and his wife, it is not necessary to determine, in the present case.

At the time when the plaintiff began his levy, by execution, Peters and his wife had only an equity of redemption in the land; but at the time the levy was completed, they had the legal title. had the plaintiff began his levy afterwards, and proceeded exactly as he did, his right would hr unquestionable. The equity of redemption did not exist, a! the time when the Sand was appraised and set off; it was merged by the release.

But i am of opinion, that a creditor in an execution, if never to be prejudiced, by any change <.f the debtor's title, between the commencement and completion of the levy; and that whatever title the debtor has. at the time the taut" is set off on appraisal, may well pass to the creditor. If anj mistake happen, from ignorance of the true situation of tin title, at the time of the appraisal, relief may he obtained ir chancery.

As the title was in Peters and his wife, and Ihe execution against Peters only, the plaintiff gained a title to the laud, a? tenant in common with the wife.

But it has been long settled, that one tenant in common, though lie declare on his own seisin and possession of tin tvhole, without noticing the right of his fellow commonci. may maintain his action of ejectment, in this form, against ¡. mere disseisor.

I am, therefore, of opinion, that no new trial ought to h* granted.

All the other judges concurred in this opinion.

New trial not to be granted  