
    Daniel Kempton versus Ziba Cook et al.
    
    A purchases an equity of redemption and enters on the land, and at the request of B, and for a consideration paid by him, C the mortgagee assigns his interest to A. Held, that B had no estate in the land, or at least none that was liable to be taken on execution.
    In trespass qu, cla, Jr, against two, the defendants sever in their pleas, and the jury assess several damages against them. Ordered, that one execution issue against both for costs only, and several executions for the several damages.
    This was trespass quart clausum fregit. The defendants pleaded severally the general issue.
    At the trial, before Morton J., the plaintiff, to prove his possession of the locus in quo, produced a deed, dated July.2, 1814, from S. Brastow, a deputy sheriff, to Abraham Darling, conveying an equity of redemption of the land described in the plaintiff’s writ, subject to a mortgage from Ziba Cook, the execution debtor, to Ezekiel Cook. Also a deed of the same from A. Darling to the plaintiff, dated March 1, 1816 The plaintiff then introduced evidence to show his actual occupation under these deeds, and that the trespasses complained of were committed by the defendants.
    Nov. 2d.
    
    Nov. 4th
    The defence was, that the title and possession were in Z. Cook, and that the other defendant entered as his servant.
    To prove this title and possession, the defendants produced a copy of a judgment recovered by Z. Cook against T. Darling in 1821, and the return of his execution, which was extended in June 1821 upon the land in question. They then introduced evidence to show that the mortgage of Z. Cook to E. Cook was assigned to J. Paine, and was after-wards paid, in whole or in part, by T. Darling, and that Paine, in December 1818, without any consideration from the plaintiff, conveyed the land to him at the request of T. Darling, To show that at the time of' the conveyance by Paine to the plaintiff, T. Darling was indebted to Z. Cook, the defendants offered in evidence a judgment recovered in 1821 by Z. Cook against T. Darling, in an action of slander commenced in 1817.
    The defendants contended that the land was liable to be levied on as the estate of T. Darling, and that the extent of Z. Cook’s execution gave him a title ; but under the instruc tians of the judge, a verdict was found for the plaintiff.
    
      Hastings senior and Richardson, for the defendants,
    cited Damon v. Bryant, 2 Pick. 411 ; Goodwin v. Hubbard, 15 Mass. R. 210.
    
      Metcalf, contra,
    
    said that T. Darling had nothing in the land, or at most, the conveyance from Paine could give him but a mortgagee’s interest, which was not liable to be taken in execution. Blanchard v. Colburn, 16 Mass. R. 345 ; Jackson v. Willard, 4 Johns. R. 41. [Eaton v. Whiting, 3 Pick. 484.]
   The opinion of the Court was read as drawn up by

Parker C. J.

The plaintiff has shown a title to the premises by his deed from Abraham Darling of the equity of redemption, which had been conveyed by Brastow, the deputy sheriff, to A. Darling, as the purchaser at a sale on execution. This gave him the right .of possession, and he entered and actually occupied under his deed. He therefore is entitled to an action of trespass against any one who cannot defend himself by title or right of entry. One of the defendants claims to own under a levy of an execution against Thomas Darling, but he shows no estate in Thomas Darling. The release of the mortgage is to Kempton, the plaintiff; so that the legal estate is wholly in him.

Oct. term 1827.

The ground taken in defence is, that the consideration for the release from Paine, was paid in whole or in part by Thomas Darling, and therefore that a trust results to him. But if this be so, he had not such a title as can be taken by levy, for he holds nothing by deed or record, and so- cannot be the owner of the estate. The case of Goodwin v. Hubbard et al. will not support this defence, for in that case Hubbard the tenant was in actual possession, and he was allowed to defend himself by showing that the demandant’s title was fraudulent and covinous.

Judgment according to verdict.

Note. This action was against two defendants, Cook ana Aldrich, who pleaded severally the general issue. The declaration contained two counts. The jury found Aldrich not guilty on the first count, and Cook guilty, and found both guilty on the second count; and assessed damages severally, to wit, against Cook, on both counts, 55 dollars, and against Aldrich, on the second count, 11 dollars and 50 cents Metcalf now inquired in what manner execution should issue, and cited Proprs. Kennebeck Purchase v. Boulton et al. 4 Mass. R. 419.

Per Curiam.

Let three executions issue, one against both defendants for the costs only, and several executions for the several damages. 
      
       See 1 Chitty’s Pl. (6th Amer. ed.) 202, 203.
     
      
       See Black v. Black, 4 Pick, 237, 238; Runey v. Edmands, 15 Mass. R (Rand’s ed.) 294, n. (a).
     