
    James Bott versus Joseph Burnell.
    The extent of an execution upon land not belonging to the judgment debtor gives no seisin thereof to the creditor.
    Entry sur disseisin. The demandant counted upon his own seisin within thirty years before the fourth day of June, 1810, of the lot numbered nine, in the tenth range of lots in Bridgeton, in this county, and upon a disseisin by one Enoch Perley.
    
    The tenant pleaded that the said Perley did not disseise, &c., upon which, issue being joined to the country, a trial was had before Thatcher, J., at the last October term in this county, when a verdict was taken for the demandant by consent, subject to the opinion of the Court upon the report of the judge who sat in the trial.
    The demandant relied on a judgment of the Court of Common Pleas for the county of Essex, March term, 1783, rendered in his favor against one William Creed, and upon an execution issued on that judgment on the 15th of December, 1783, and extended on the third day of February, 1784. The appraisers certified that they had entered upon and viewed the estate, which they were sworn to appraise, “ consisting of two rights or shares in the township called Bridgeton, including lots numbered three and four in the second range, and nine in the fourteenth range, with the common and undivided lands that may be laid out to the original right of James Bridges; — also the lots numbered nine, in the tenth range, and seven and eight in the twenty-fourth range, with the common and undivided * lands that may be laid out to the original right of Joseph Hale.” The sheriff returned, that he had extended the execution on the same lands, and had delivered seisin and possession thereof to Enoch Perley, the creditor’s attorney, who also acknowl edged himself, by an endorsement on the execution, of the same date with the sheriff’s return, to have received seisin and possession thereof from the sheriff.
    The deposition of one of the appraisers was introduced at tire trial, testifying that they went with the sheriff on one tract of land only, which the sheriff considered as a sufficient view, and that he saw the sheriff deliver formal seisin to the said Perley, of that tract, in name of all the lands appraised. Another of the appraisers testified to the same facts, and that he knew the value, and could appraise the other parcels of land without viewing them, as well as after viewing them. He also swore that the said Perley, soon after the said extent, claimed the lot now demanded, and sold the same to one Alpheus Gibbs. There was no positive evidence, that Perley had regular powers, as the creditor’s attorney, to receive seisin of the land extended upon; but a gentleman, who was at that period a practising attorney, testified that he recollected being engaged in the transaction, and had no doubt that a letter of attorney for that purpose was duly executed and transmitted to Perley.
    
    It was in evidence on the part of the tenant, that before the commencement of the demandant’s action against Or. id, there had been a partial division of the lands in Bridgeton among the proprietors ; and that the lot numbered nine in the tenth range, which is the lot demanded in this action, was set off to the original right of James Chandler. The tenant also produced, and read in evidence, a deed bearing date the 9th of February, 1805, duly acknowledged and recorded, by which one William Rogers conveyed to him the demanded premises; and he proved that he, and the said Rogers before him, had lived upon * and possessed the demanded premises more than six years next before the purchase of the demandant’s writ in this action.
    If, upon the foregoing evidence, the Court should be of opinion that the demandant was entitled to recover, judgment was to be entered upon the verdict, and. a jury to be empanelled to inquire [pursuant to Stat. 1807, c. 74] of the value of the land demanded, &c. And if the Court should be of opinion that the demandant was not entitled to recover, in this action, upon the foregoing facts, the verdict was to be set aside, and a new trial granted.
    
      Whitman and Mellen for the demandant.
    
      Hopkins for the tenant.
   Sewall, J.,

delivered the opinion of the Court.

The title of the demandant is the extent of an execution upon a judgment he had recovered against one William Creed. The extent and return are dated February 3, 1784.

One objection to the effect of this execution is, that the creditor was not represented by an attorney authorized by deed; — or, at least, that there is no evidence now to be produced, of the authority given by the judgment creditor to Enoch Perley, to receive seisin of the lands levied upon; and evidence of seisin is supposed, in this objection, to depend on Perley1 s receipt annexed to the officer’s return. And I presume it was only against the effect of the execution, that an inquiry was gone into at the trial, as to the conduct of the appraisers, in viewing only one lot of several lots appraised, and making their appraisement without an actual view of every part of the real estate appraised. It is also to be observed, that these objections are offered on the part of a tenant who derives no title from the judgment debtor, and had not. even a possession of the lot demanded, when the execution was levied.

But to these objections, from whomsoever received, as applicable to the effect of the execution, the sheriff’s * return is a conclusive answer. If he returns an appraisement, and a seisin delivered to the lawful attorney of the judgment creditor, those facts are proved by the return, and every person is concluded by it, in any question of the effect of this execution. Creed himself must be concluded, and all claiming under him; and all other persons, so far as it is evidence of formal proceedings, which are to avail against the parties subjected to the authority exercised therein. But it is no evidence, or not conclusive evidence, to any other purpose. For instance, if the land in controversy was Creed’s when the execution was levied and extended, if Burnell, the tenant, was not then in the possession of it, and entitled to the possession of it against Creed, the return of the sheriff is a title to the demandant. On the other hand, if the land in controversy was not Creed’s, this extent was no title to the demandant against the lawful owner, or any person in the possession; and the return is perhaps no evidence of a seisin; it certainly is not incontrovertible evidence, to the prejudice of third persons; and as evidence of an actual seisin, it is contradicted, and overthrown by the evidence produced for the tenant. The seisin of one of Creed’s lots might be a seisin, by operation of law, in all his lots appraised; but supposing an appraisal and description of a lot not Creed’s, it would be too much to say that, constructively by the mere return of the sheriff, the owner, being a third person not controlled in his rights by these proceedings, had been dispossessed, and a seisin of his land had been acquired by the demandant, by operation of law, without an entry in fact.

The subsequent conveyance by Perley is alike insufficient .of itself, and for the same reasons, when offered as a proof of a disseisin. There is no evidence of an entry by Perley, other than the constructive entry by his receipt for the seisin of Creed’s lands. If a seisin was gained to Perley’s grantee under that deed, by his taking an actual possession under it, whether by right or wrong, it affords * no proof of this demandant’s seisin ; nor is it perceivable by what relation Perley’s act in that conveyance is to operate as Bolt’s, and to give a seisin to him.

Upon.the whole, the demandant’s title, as derived under the execution, is disproved by the evidence that the lot demanded was not Creed's, but Chandler's, or his heirs’, or assigns’, having been drawn to his right, and not to Hale's, under whom Creed claimed. At least, that is the probability upon the evidence reported, and the jury have not decided upon it. And as a title by disseisin, which might be sufficient against this tenant, who shows no title, there is no evidence of an actual seisin in the demandant at any time. The evidence derived from the execution, if it had any tendency to prove a seisin against a third person, altogether a stranger to the proceedings in the extent, is refuted entirely by the proof, that neither the appraisers, nor the sheriff, nor the demandant or his attorney, or any one concerned in levying the execution, made any entry, in fact, upon the lot of land in controversy.

Upon the evidence as reported, the demandant is not entitled to recover in this action ; and according to the agreement of the parties in reserving the case, the verdict is to be set aside, and a new trial is to be granted; and that is the order to be now entered, 
      
      
         Com. Dig. Retorn. G.
     
      
      
        Com. Dig. Seisin, F. 1, 2, 3, 4.
     
      
      
         [Vide S. C. (11 Mass. Rep. 163,) on new trial.—Ed.]
     