
    
      Elijah Paine vs. Lindy Webster, et als.
    
    That there may be defects in the description in a levy on real estate of which the debtor has no right to complain. To others he may object.
    That a purchaser under a deed of trust, can hold only subject to the stipulations and conditions contained in such deed.
    That the statute of limitations does not begin to run till the plaintiff’s cause of action accrues.
    This was an action of ejectment for a tract of land in Swanton, described as lot No. 147. The defendants pleaded the general issue, which was joined. There was a trial by jury in the County Court at the last April Term; when a verdict was returned for the plaintiff, under the direction of the court, with a view to save all the questions of law raised on trial, and let the same pass to the Supreme Court for a revision. Accordingly the parties agreed upon a case in the form of a bill of exceptions, which was allowed as such by the judges of the County Court, and in which is exhibited the claim of title set up by both of the parties, with the objections against, and decisions of the court upon the same. Roth parties claiming under one Silas Hathaway, neither resorted to the charter as a foundation of title. The plaintiff claimed title'by attachment and leyy of execution j and the defendant by a deed from said Silas. Said Silas Hathaway, by a lease dated September 10, 1799, and recorded in the year 1811, leased and to farm let to Jlios&s JMPClure, one of the defendants, and his heirs and assigns, the. lot in question, to hold as. long as grass grows, Water runs or the sun shines, reserving to the lessor, his heirs and assigns all the mill-privileges and places for water-works of any lpnd whatever, and eight tenths of all ores, mines, minerals, white oak and pine timber — on tire, special condition, that s.aid JVpClure, his heirs and assigns, should well and - truly pay to said Silas,. his heirs and assigns, at the Lower Falls m Swanton, on Missisguoi river, at a certain
    place to be afterwards appointed by said Silas, $12,50, for the hundred acres contained in the lot; also pay all taxes that should be laid upon the land &tc., and, upon neglect to pay said taxes or said rent, so thattwo years’ rent should become due, and remain unpaid, then said Silas, his heirs and assigns to re-enter and taire possession, and put out said Moses, his heirs or assigns. Messrs. ■ Hitchcoclc and Allis, by a writ dated-,and served in October, 1803, in their favor and against said Silas Hathaway, caused all the lands in said town of Swanton to be attached as the property of said Hathaway, and they pursued their action to final judgment, which was rendered in their favor on the last Monday of August, 1805, for the sum of $31,027,29 damages, and for the sum of $61,55 cents cost; and took out their execution, dated September 9, 1805, which is agreed to be the day when they could first have their execution without leave of court, or the legal day of the rendition of judgment. On the 8th day of January following, the sheriff began thelevy of said execution upon a vast many lots of land in said town of Swanton, amounting to upwards of nine thousand acres in the whole, and says in his return, that he completed said levy on the 7th day of February, 1806. There-cording of the execution and return, whatever was made, was made in the Town Clerk’s office in Swanton on said 7th day of February, and was returned for record into the office of the Clerk who issued the same, and by him recorded on the 9th of said February. Said execution and levy are made, part of tire case', so also is a mortgage deed, which is referred to, in said levy, dated September 20,1803, executed by said Silas Hathaway to one Simeon Hathaway, jr. and to be noticed hereafter. The plaintiff also adduced a mortgage deed from Hitchcoclc and Allis to himself dated December 9, 1806, of all the lands included in said levy, to secure to him the payment of $2566,48, payable within three months from said date. The said defendants admitted themselves to be in possession of the lot sued for.
    . The defendants then produced and read to the jury a deed from said Silas to Shadrach Hathaway, one of said defendants, dated September 12, 1805, conveying all the lands of said ¿Was in said 
      Swanton, called about eight thousand aeres, including all the lands by him before leased, and all the reservations,rents,profits,issues,remainders, reversions, rights, interests and demands he had to any lands in said town'.
    The defendants offered a deed from die plaintiff to one John Curtis, of all the lands included in said morJÍge deed from Eitch-coc/c and Allis to himself, in trust for certain purposes therein named, dated October 11, 1810,.- Also, a deed of the same premises from said Curtis to Shailfach Hathaway, dated April 7, 1815. ■; These were objected to by the plaintiff, and both excluded by.thé court. !
    The' defendants made several objections to the testimony offered by the plaintiff, which were -over-ruled, and requested the court to charge in favor of the defendants upon several points, to which the court refused.
    The counsel for the defendants contended — The first question in this case is whether by the levy of the execution mentioned in the case any title was acquired to the land as against Silas Hathaway. We contend that title by levy of an execution, being by operation of law, without the consent or act of the debtor, must be established in strict conformity with the law under which it is created.— The construction must be most strongly against the creditor.— 5 Conn. 592, Hobart vs. Frisbee. Our objections to the levy are 1. To the instrument itself, that is, the execution and levy. On this we contend,
    That no other record of the execution was made than the one to which the name of the Clerk of the County Court was signed “ Darius Mattocks whereas the name signed to the execution offered by the plaintiff in evidence was “Darius Matthews.” We believe it to be as fatal as if no name of a clerk was recorded.The record would appear to be of a void execution, and would be evidence and notice to persons interested, that the creditor had by mistake or otherwise attempted to levy a void 'execution.
    If the' execution was not recorded, no title passed, at least, the levy could not be read in evidence any more than a deed not recorded. — Stat. 167, 210,414, 415.
    No land appears by the return of the officer to have been shown to theappraisers. — Stat. 210.
    
      As to the description of the property levied upon • we contend that it must appear to the courtin an action of ejectment that the property sued foris the same that was appraised: it must apear what was appraised, that the court and the parties may loto? precisely what the creditor has paid for, so that he may obtain th^property for which he has made payment to - the debtor and no more. A void levy may be taken advantage of by ejectment. — 2 Phil. Ev. 203-4. — 4 Com.Dig. 131-3.—Douglas 474-5. Den vs. Abingdon. The plaintiff has sued for and obtained a verdict for the land. What was appraised ? Under the description of all that appertained to Silas Hathaway, it does not appear that the appraisers were shewn, or valuéd, any thing as belonging to him. Under the different words used, what did they value ? Under the word “ right,” was it his own right, or right of his wife, right of possession or right of property ? “ Title” — was it by occupancy, b}r deed, good or doubtful, inchoate or perfect ? “Interest” — was it that of tenants in common or in severalty, and to what extent, half, fourth or what ? “Estate” — was it for life, for years, at will, or in fee ? “Claims anddemands” are unmeaning words. “Equity of redemption” — This is still more uncer■tain. What did tire appraisers consider appertained to Hatha- ' way in the land ? What appertained to him in the Equity ? If the creditor intended to take the land subject to the mortgage, he should have had it so appraised; but in this case he has taken what appertained to Silas Hathaway in the Equity of redeeming such right, title fee. as appertained to him in the land. If Hathaway owned the land and made sales, it might or might not be his duty to redeem the whole land; but his interest in the land, subject to the mortgage, would depend upon what remained in his hands. This was subject to change every day by deeds, leases, or anjr thing that affected Silas Hathaway’s interest in the lands. — - The value of Hathaway’s interest depended on his right and interest in the land, and equity of redemption. It does not appear what the appraisers considered appertained to Hathaway in either.— This lot was excepted from the mortgage. “Remainder and ■reversion”, — What was the particular estate ? what was Hathaway’s interest in the reversion ? It appears by the case that Hathaway had no remainder or reversion. If it was intended to take the land, and thus acquire all Hathaway's right, title, interest &ic. in the land, the.levy must have'been on the land; the appraisers must have valued the land itself. The law makes them judges of the value of property, but not of the nature or extent of die debtor’s right, &tc. or of their value. All the levies in this state have always been on land. — - So in all the states where lands are appraised on Execution. If a less interest than the whole is levied upon, as part in common, it must be particularly described. In England the creditor only acquires, the right to the rents of the debtor. There this levy would be void. In this state where the land passes absolutely and forever, still more certainty should be required. A party may convey. his land by general description. A sheriff’s deed in New York with such description is void. 9 Mass. 92, Tate vs. Anderson.— 14 Id. 20,28,30, Williams vs.Amory.— 17 Id. 299, 302, Allen vs. Thayer.—13 Id. 51 Chickeny vs. Lovejoy, et al.—12 Id. 163, Bott vs. Burnell.—1 Conn. R. 470, Hitchcock vs. Hotchkiss.—13 Johns. 97, 102, Jackson vs. Roosevelt.—13 Id. 537, 551, same vs. Lacy.—2 Phil Ev. 203-4.—3 N. H. Rep. 140, Howard vs. Daniels.—3 Id. 496, Mead ei al. vs. Harvey et al. If the lands had been set off and appraised, still the levy would be void, because part of the land was not described with sufficient certainty, and the appraisal was at one gross sum. In this case, if the levy is void in part, it must be wholly so; as the appraisal was in one gross sum. The creditor might treat the levy as void, and pursue for his debt; but how much will remain due to him ? If the creditor is not paid, the debtor may certainly treat the levy as void and retain his lands. In this case it was uncertain, what right Hathaway had to lease the land, what its value was as against strangers, and what the interest of Hathaway was in the lease at the time of the levy. The amount of the appraisal forms here no evidence in the case. — Phil. E. 417 alias 476. If it was the interest of Hathaway in the leases or deeds, it does not appear whether the rents &c. were appraised, or the land in order to obtain all Hathaway's interest. It does not appear the appraisers considered Hathaway had a good title to any, whatever-, they may have considered his claim to be.
    An Equity of Redemption could not be taken by appraisal im-der our statute, (R. It. 211, sec. 6.) if it could, the amount due on the mortgage ought to have been stated in the officer’s return that it may appear what tire appraisers valued. If the act (R. L. p. 216.) is decla-tory as to the appraisal and setting off to the creditor, so it must be as to the duty of appraisers and sheriff. The evidence given by the plaintiff, viz : tire mortgage deed from Silas Hathaway to Simeon Hathaway, the deposition of WilliamPage, and the release from Simeon Hathaway does not aid, his case; this evidence was not in existence at the time of the appraisal. The creditor cannot take the equity of redemption in part of the lands.— 5 Conn. 592.
    
    The deed from Paine to Curtis was valid. Paine held the property in trust for himself and Curtis. An adverse possession does not prevent a transfer of the legal estate among the cestui .que trusts. The whole deed taken together shews the restrictions were merely personal, or at most, applied to a sale on credit, and directing how, in case of such sale, tire payment should be secured. It was never intended to prevent him from selling for money. Curtis was expressly authorized to convey in trust. Shadrach Hathaway then acquired the legal estate, and Curtis’ share in the equitable.' The court cannot presume the trust executed. That is a question for tire jury, and the presumption may be 'rebutted. The facts in this case show conclusively that Hathaway never executed the trust by any conveyance to Paine. If the court can presume an execution of the trust, they will not decide it to have been executed where there is no presumption of the fact. — • Had the trust been executed, still Hathaway was himself one of the cestui que trusts by owning Curtis’ equitable share or interest. He was tiren tenant in common with Paine and the other cestui que trusts. This verdict cannot be sustained for the whole land. There was no actual ouster, and if there was, plaintiff could only recover his share, and that in Chancery. Although Curtis’ deed did not enable him to convey to Bishop or any other stranger, it enabled him to convey to the person in possession. 8 Johns. 105 Jackson ex dem. Humphrey vs. Given et al.
    
    We contend the statute of limitations began to run on the 12th September, 18Q6, and continued to operate from that time. The fcáuse of action accrued when defendant Hathaway took possession. In all cases
    of a title by the statute of limitations, the accruing title of the possessor is against him. The levying creditor acquires no more rights than a purchaser, except when the conveyance from his debtor is fraudulent. Contesting the levy by the defendant does notvary the case any more than contesting a deed would because it wanted a seal, witnesses, or other requisites. The fifteen years, at all events, began to run six months after the 8th o^ January, 1806, and expired 8th of'July, 1821, twenty two days before the action commenced.—11 Mass. 153, Brown vs. The Maine Bank.—9 Id. 393, Haywood vs. Hildreth.
    
    The levy of the execution in terms took effect subject to Sha-drach Hathaway’s deed.] The attachment must be presumed to have been abandoned, and the levy made for the purpose of contesting the deed to Shadrach Hathaway. Had the creditors intended the levy should relate hack to the attachment, they should ha\e levied on the land : but even then they could not have held this lot, as it does not appear of record Silas Hathaway owned it. The writ was dated July 30th, and served August 1st, 1821.— The interest of Silas Hathaway in the rents should have been taken according to the eighth section of the act providing for levying executions (R. L. p. 212.) Rents are not] the subject of a proceeding' according to the fourth section, R. L. p. 210. In case of a lease for years, or for life, reserving rent, the rents can be taken only according to the 8th section. In this case the grant Was in fee simple forever, reserving rents; but from the nature of the case, the rents must be taken according to the 8th section, or not at all. If the creditor can take the rents under that section, he must so take them ; because that section confers a privilege on the debtor in the redemption and value of the property which tire 4th section does not. It is said if the creditor will levy on the land and pay for its value, he may obtain die rents, or any other interest in the land. This we deny; the land may be worth as much as rent, i. e. the land may be worth one hundred dollars, and rent twelve dollars per annum; the landlord relying on the personal security of the tenant. In such case the creditor would obtain the rents without paying for them, as the appraisers would not take into consideration any thing but the value of the land. If in such case the Tents were taken according to the 8th section, and the debt was only one hundred dollars, the land would in time revert to the debtor ; whereas if the land is taken under the 4th section, it is gone forever [if not redeemed in five months. If the appraisers value the rent, we say that rents being certain in their amount were not intended to be the subjectof appraisal. The law declares what shall be then’ value in the payment of debts, but if they pass to the creditor by appraisal either of the rent or of the land, their value would be uncertain, a rent of ten or twelve dollars per an-num might pass for one hundred dollars; this would depend on the opinion of the appraisers ; and in such case, the debtor would be limited to five months redemption; but by the 8th section, and its proviso, the debtor is ensured the full amount of his rent and allowed to redeem at any time. In this case the appraisers might have, valued the land at half the value of the rents, This value of the land is fluctuating, and may afterwards become sufficient to produce the rents. If rents like the present cannot be taken by tire 8th section, creditors would in most cases be without remedy. Suppose the land to be worth eight or ten times as much as the rent. Rents do not come within the description of property subject tó be appraised;—R. L. 210, s. 3 & 4: they cannot be divided so as to make several landlords at the same time. We contend lire tenants couldnot be subject to forfeiture until notified of the assignment of. the lease, or grant; the only mode in which the plaintiff could proceed was to appoint aplace of payment, to require the tenants to attorn, and pay rent, and in case of refusal or neglect to pay the rents according to the terms of the grant, proceed by ejectment; but until he has entitled himself to the benefit of a forfeiture, he cannot maintain ejectment against any one of the defendants. — Adams' Eject. 16, 22, 23.— Shep. Touch, ch. 13,p. 253, 262-4.— 8 T. R. 2, Da Costa vs. Wharton. The levy was not completed within the five months, from the rendition of tire judgment. The five months expired on the 8th February 1806. In all cases where the time is to be computed from any act to be. done, the day on which die act is done, is included.—2 Doug. 464, Rex vs. Adderly.—3 T. R. 623, Castle et al. vs. Burdell.—3 
      East, 407, Glassington et al. vs. Rawlins et al. So is all our practice.
    The counsel for the plaintiff contended, That the facts as they •appeared at the trial are stated in the case now presented to the court on this motion. The first objection to the evidence-offered by plaintiff, is that in the record of the execution and return in the town clerk’s office, there is a mistake in writing the name of “Darius Mattoclcs,” instead oí “Darius Matthews,” a clerk of the court from which the execution issued. It would seem sufficient to remark here, that the record of the execution and return in the town clerk’s office, agree in every important particular : the sum, the date, the parties, the court and the term of the court in which the judgment was rendered. If the object then of recording be to give notice, that object is surely answered-in tire present case; no honest enquirer could be deceived. But the course of the court is to overlook such mistakes where no amendment can be ordered and no injury be sustained by it.—12 Wheat. 570. The act of Parliament required “that the “ certificate of the registry of such ship or vessel should be truly “ and accurately recited in words at length, in the bill or instru- “ ment of sale thereof, and otherwise, should be utterly null and “ void to every intent and purposebut in this was inserted “ 1783” for “ 1782,” and yet the bill of sale was judged good.— 4 T. R. 161, Rollaston vs. Smith. “ A grant of a manor is good “ although inreciting the fine it mistakes the plaintiff for the defor- “ ceant.” — Cro. Eliz¡ 127. A mortgage deed to secure $3000, wasrecorded $300, yet it was adjuged to be recorded within the condition of abond by one who has under taken to procure it recorded, but not so as to create a lien against a subsequent purchaser for more-than the $300. — 18 Johns. R. 544. The execution and4levy are now recorded, and that is sufficient for any one except a subsequent attaching creditor or a subsequent purchaser without notice. “ In such case the execution and sheriff’s return need not be re- “ corded within any given time.”—15. Mass. R. 137, McLellan vs. Whiting. In the scire facias the Christian names of both of “ the plaintiffs on whose suit the bail bond was taken were mis-stated, James S. Colburn and William Gill for John S. Col- “ burn and George W. Gill; but they, were described as mer- ^ chants Under the firm of Colburn “ Gill and the plaintiffs bad judgment on the scire facias. 10 Mass. R. 20, Colburn and Gill vs. Burton. The sheriff had in his return stated, that he levied on the land, completed the levy and appraisement, and delivered' seizen on the' 12th of January, whereas it was in part done on' the 22d. A motion was made for the officer to amend his return, but the court decided that they would reject the date and establish the levy.—13 Mass. 22. 529. The justice certified that A. C. was sworn to appraise, &c. B. C. m'ade the appraisal; but the sheriff returned that he caused B. C. tó be sworn, &tc. and it was holden to be good.- —4 Mass.R. 20, Williams vs Amory.
    
    It is objected, That it does not appear by the officer’s return' that the land levied on was shown to the appraisers. This is Certainly implied in the return, that he caused the land1 to' be appraised, &c. How could it have been appraised, if not shown to' or seen by the appraisers ? The court will presume that the officer" did his duty in this respect. It is' not required in Chipman’s’ forms. — N. Chip. R. 354-5.
    It is objected, That the description of the right of Silas Hathaway as set forth in the' return is vague and uncertain, that it does nor appear what was levied upon or appraised, or that any land or specified property was levied upon or appraised; and the reJ turn is therefore void. This is, without controversy, the most difficult point in the cause, and yet, it is believed that the return is good. The lands are no doubt sufficiently described by the numbers of the respective lots, that is, the return describes them “ with as much precision as the nature and situation thereof will “ admit,” in the words of the statute. The court will intend that the lots as described in the return had been surveyed by the proprietors, and a plan and survey thereof returned, and that these proceedings had become matters of record in the proprietor’s clerk’s office. The lots therefore are as well known by their. numbers and better than they could be by an actual re-survey, in which the corners, points, and distances should be given. But the objection is that the interest of die judgment-debtor is not described, or in other words, that it does not appear by the return whether the land itself, or some real or imaginary interest of the debtor was Tthe subject matter of valuation. ■■ The words of this part of the return are “all, the “ tide, interest, estate, claim, demand, equity of redemption, re- “ mainder and reversion, whiph appertained to the said debtor in “ and unto the aforesaid land.”,, We may inquire what is the ob'vious import of these expressions ?. It is certain that neither the ^sheriff nor die appraisers undertook ..to decide what.was the na- . ture or extent of the debtor’s title in the lands. If they did not , undertake to judge what the debtor’s title or interest was, how could they appraise any particular interest or estate ? On what, in short, ccruld they, exercise their judgments but the land itself. Their using so. many terms expressive of tide or interest in reality clearly shows that they did not take it upon themselves to judge by which of these terms the debtor’s interest was defined. What then could they appraise, or the sheriff set off, but the land 'itself? What is all the interest, title, and estate in*a piece of land but the land itself ? The word estate clearly implies all that a man can have in lands.— 2 Bla. Com. 103. The meaning is plain and obvious, apdon first perusal wo one could doubt. The plain meaning is : we have appraised this land and all the interest of ¡defendant therein. But if they did intend to judge of the title, is the court bound to believe that they misjudged, or is the presumption of law that they judged correctly? If they examined the title they found that the debtor was in the perception of rent to the amount of the interest on the value of tire land, and that the reversion was in the debtor and this they appraised. And what is this but appraising the land itself? Neither the rent or the reversion could pass without the lands. But to say I have bought a man’s land, or his estate, or interest in the land, are all expressions of .the same import, especially when addressed to one who knows the title. But should we say, we have purchased or appraised or set offzll A’s interest or estate or title in lot No. 1. and he owns but an undivided moiety of the lot, would not the meaning and legal operation be perfectly obvious ? How else could an undivided interest be set off ? Should the sheriff and the appraisers set off' and appraise the whole lot ? Creditor then loses half his debt. If they set off any undivided part or proportion of the land, they then undertake to judge of the quantum of the debtor’s interest, and the 'gentlemen’s objections arise in all their force. Suppose then they appraise and set off all the debtor’s interest in the lot, would not the moiety be well set off and the title pass ? If then such a return be good for a moiety, why not for the'whole when the whole was appraised ? Suppose the return should say, all his right, title, interest, &c. (being a moiety or a fourth) would not such levy be good for the one half or one fourth, as the case might be ? Would it then vitiate the return if the words “ moiety” or “ fourth part” were left out ? But here we are not without authority. It is said, “ All the right, title, and interest, &tc. of the “ debtor would pass the remainder as in a deed.” — 14 Mass. R. 408, Atkins vs. Sean et al. If this be correct, then appraising and setting off all the right, title, &ic. of the debtor passes the whole, if debtor owned the whole. We think that every presumption is to be made in favor of the return, when it does not appear that any thing wrong intervened. 14 Mass. R. 408, Atkins, vs. Bean.—11 Mass. R. 515, Boylston vs. Carver.—1 Pickering 521, Start vs. Sherwin—17 Mass. 440, Montague vs. Gay.
    
    We contend not only that this return is such as will pass the land, but is in strict conformity with the spirit of the act. The act provides “ that all houses, lands and tenements, belonging to anyper- “ son in his own right, in fee or for his life or the life of another, “ paying no rents for the same, shall stand charged with all the “just debts &c. of such person.” — R. L. 210, sec. 3. The act then directs “ that when execution shall be extended on any real “ estate, the same shall be appraised, &c. &c.” — sec. 4. And in the latter part of the same section,“which appraisers after being duly “ sworn by such officer, shall appraise such estate as shall’ be “ shown to them, at its true and just value in money, &cc.” Now what is here to be appraised ? the answer is, the estate (status) that is, the right, interest or estate of the debtor in the houses or lands — 2 Bla. Com. 103. Now suppose the debtor is ninety years old and has only a life éstate in the house or land, can it be pretended that the sheriff and appraisers are to shut their eyes as to the nature and duration of the debtor’s interest in the subject matter of the appraisal, and appraise the house or land at its real Value as an estate in fee ? • This would fee monstrous injustice. Is it not manifest that they must take into consideration the age, health and prospects of the continuance in life of tire tenant .for life¿ or the tenant per aider vie ? In such casé then, the sheriff must set out the land by metes and bounds or by the number of die lot, &c.; but the thing set off and the thing •appraised,must be the right, interest or estate of the debtor in the lands thus, described, and can be nothing eke.—14 Mass. R. 404, Atkins vs. Bean. Why does tire statute require the metes and bounds to bé set out ? Merely that the parties may know the bounds of tíre territory in which the creditor acquires a right. But these metes and bounds neither afford nor can afford-, any description of tire nature and extent of the debtor’s title, or of that acquired by the credit- or. Whatever estate the debtor had is appraised and set off, and all this-, and this only, ve'sts in the creditor; ' Ñow Suppose in the case of a life estate as above mentioned, die sheriff should return after setting out tíre lands by metes and bounds; or describing it by the number of tire lot, he should proceed to say-, that he caused to be appraised and set off the life estate; or remainder or reversion, or all the estate ór intérest of the debtor in the described premises ; is it possible that this would vitiate the return ? Would it be returning any thing different from-what they had done and were ti-bliged to do by law? Suppose the sheriff returns in casé of a fee that hé has caused to be appraised and set off all the estate or interest of the debtor in the described premises, being a fee simple, or being a remainder, or being a revorston, or being am equity of redemption. Would any One tíf these be uncertain t' Douldnotthe court understand Which was appraised ? and would ny of these vitiate the return ? And suppose they actually appraised and set off .(as it should after turn out) the true and legal in-erest which the debtor had in the premises, would títere be any reasonable objection to the return ? It has been shown that in some caáes the appraisers must take into consideration the nature and duration of the debtor’s interest or estate; and it is believed that if they must take it into consideration and appraise accordingly, that the sheriff may and ought to state the nature and duration of the estate in his return; yet, perhaps, the want of it will not vi-tiate the return. If the sheriff and the ap~ praisers may and must look into this subject, and when they do, and state it in the return, cannot the court do the same ? and can they not by comparing the debtor’s title with the return, see whether justice has been done, whether the same interest or estate owned by the debtor has been appraised ? Is not this more easily done, than if the return were general, saying only that they had appraised and set off the land described, when in fact they had appraised the interest of the debtor, the life estate only ? A return like this would be indeed rendered suspicious, merely by a comparison of the known by the estimated value in the return. The objection seems to be that the appraisers return what they actually did and were bound to do. It is said in 14 Mass. R. 408, Athins vs. Bean, that it is not necessary, though convenient, that the appraisers or the officer in his return should set forth the nature of the estate taken, or tire estate of the tenant for. life: “ all the right, title and interest of tire debtor” would pass the remainder as in a deed. Now the nature of the estate, or right, title and interest of the debtor, cannotbe appraised or set off, or set forth, in any , other langauge than that of the return of the officer now under consideration. Either the land itself must be set off or the interest of the debtor therein; one cannot be appraised and the other set off. If he set off the land, what use can there be in setting forth the nature of the debtor’s estate in it ? • The latter is not the thing set off; such return would be inconsistent with itself. The only way that can be done, agreeably to the principles of this authority, is to describe the land in which the debtor has an interest, and set off that interest on the execution. And this is precisely what was done in tire return under consider- ■ ation. In comparing the language of the return with the lease -to Me Clure, which is made part of the case, and with the mortgage deed to Simeon Hathaway, which is also in the case, the court will find that in the return the nature of the estate of the judgment debtor is exactly described, or in the language of Judge Parker, in Atkins vs. Bean, “ the officer has set forth the nature “ of the estate taken.” Silas Hathaway, the debtor, in his lease gives to the lessee an estate which may continue forever, defeasible on the non-performance of the conditions, that is the payment <of c’ertain rents-, then remaining in fee in the lessor ; he also gaye a deed of mortgage to Simeon Hathaway of which, at the time of the attachment, he had the equity of redemption. To the reversion the rents are incident, according to the case oí Montague vs. Gay, before cited. Now among other things, this equity of redemption and reversion in the lands described in the return are appraised and set off: the . other words descriptive of a title may be considered as synonymous, as comprehending the same interest, or rejected as surplus-age. It does not appear that any less title than the debtor had in tire premises was either appraised or set off; but if the other words imply any thing more than the equity of redemption and the reversion, then more was appraised and set off than the debtor held, and consequently the creditor and not the debtor was injured. The creditor may, therefore, hold all that is well .described, though less than was appraised, as in the case of Atkins vs. Bean et al. before cited.
    The court must come to the result that the lands are well described, that the nature of the estate of the debtor taken, appraised and set off,' is well defined and set forth, and that the very interest set off is fairly appraised. Why then is not the statute complied with ? and why does not the title vest in the creditor ? In the argument thus far we have taken it for granted, that an equity of redemption might be taken and set off as real estate, and it is believed that we shall establish this position when we come to meet it in the form of an objection to tire proceedings.
    But conceding for the present that an equity of redemption cannot be proceeded with as real estate, how will the case then stand ? It was certainly nO privilege to the creditor to proceed in such a manner as to encumber himself with the payment of this mortgage money, nor was the estate more valuable for having this encumbrance upon it. Laying this out of the case, it will then stand that the lands in which the debtor had a reversion in fee were well described in the return, that the reversion in those lands, together with the rents which are incident to it, were appraised at their full'and just value in money, and set off on the execution. This then was all the estate the debtor had in the premises, and more: the creditor, not the • debtor is injured, and such creditor must hold wBat is well described. And being obliged to pay the mortgage money afterwards, will not impair his legal, but very much enhance his equitable title. That such was the result appears from the deposition of William Page,- which is in tire case, and that the money for this object was furnished by the very person for whose benefit the plaintiff seeks to recover in this action.
    The next objection is, That in the description of the equity of fedemption, the levy did not state the amount of the mortgage as ascertained by the appraisers. The mortgage deed is merely referred to in the -return by way of description. It does not appear that they made any deduction from the appraisal on ac-' count of tire mortgage, but appraised the premises at the true and' just value in money.
    But it is objected further, That an equity of redemption can-* not be taken by appraisal. It was understood that tire court on a former argument, were satisfied on this point. It may however be proper to repeat what was urged at that time on that subject, and in doing this the next preceding objection will come under consideration. The ground of this objection is, that a right to redeem is personal property, and so should have been sold at veri-due on the execution. It is believed that the law has always been understood otherwise in this state. It is an interest which can pass only by deed. The seizen and right of possession is by our law in the mortgagor till condition broken. The mortgagor can maintain, even after condition broken, trespass or ejectment against any one except the mortgagee and tiróse claiming under him. It is not easy to perceive why setting off tire land on execution, which is in the possession of tire judgment debtor, and who has the right of possession, should not convey the right which he ' has, i, e. to possess and redeem. This is- more analagous to our mode of proceeding in like cases. Formerly personal estate might be appraised on execution, if the creditor so elected. — Has-welVs edition of the Statute, 66. The statute, p. 80, makes an equity of redemption liable to be taken on mesne process and on execution, but points out no mode of serving tire attachment Of levying the execution. The sheriff is not in such case authorized to execute a deed. If an attachment were served without leaving a copy with the town clerk, would not a conveyance by the debtor be good ? and if an equity of redemption were sold at vendue, and the return not recorded in the town clerk’s office, would not a conveyance by the debtor be good ? Yet if in this respect it is to be considered as personal estate, no provision is. made by any statute for filing a copy of the writ, or recording the officer’s, return of die execution. It is believed that the legislature in passifig the 77th sec. of the act considered an equity of redemption as real estate, and they have accordingly coupled it with remainders and reversions which are clearly such. No instance of selling an equity of redemption atvendue, on execution, is known to have occurred, nor is it be-lievedthatany has occurred in the state.- We maytherefore consider the act of 1824 as declaratory of what the law has always been in this state, radierthan as remedial.—R.L. 216. Cruise on Real estate 125-6—1 Atkins 603. An equity of redemption is considered in England and in most if not all of the" U. States, as real estate. In England the husband has atenancy by die curtesy in an equity ofredemptionof the wife. — 1 Cruise 137. -In Connecticut fixe wife is endowed in an equity ofredemptionof the husband : though it is otherwise in England. Yet the practice of suffering it is condemned by the courts as hard and unjust,diough established by such long practice, that it cannot now be questioned.—1 Conn. R. 559, Fish vs. Fish.— 1 Cruise on Real Estate, 128-9.—1 Conn.R. 560, vs. Fish vs. Fish.— 2 Id. 600.— 4;Id. 235.—3 Id. 211-13, Scripture Johnson. Nowitmay be askedhow could thisbe done except by ascertaining die value of the land, then computing the amount of the mortgage money, and then deducting one from the other, and thus fixing the value of the equity of. redemption ? And if this was done in die case under consideration, does it not pass all die interest and estate of die judgment debtor, whether it was a reversion, or remainder, or a fee simple, when redeemed ? If so, it is not possible tiiat inserting the other words, such as interest, estate, claim, &c. should vitiate the return. Iftiiey appraised the. equity of redemption without deducting die mortgage money, is the debtor tiiereby prejudiced? Can he complain? In either case all the estate of the judgment debtor passed, and what need we more ? Is it strange then, that as the law is, the Courts of Equity in England, aslong since as Lord Hardwick's lime, had settledjthe prin ciple that a mortgage was never pel'" sonal estate, that an equity of redemption was a real interest in the mortgaged premises, which might be granted by deed — -which might pass by device — would deSCend to the heir, and that a husband might hold it by curtesy,— that the penman of our Statute (who was doubtless judge Chip-man) should class an equity df redemption with reversions and remainders, as real estate, Understanding, that it should be' appraised on execution as such ? And are we by a decision in this case to place ourselves two hundred years behind every other place where the principles of the Common law and equity have prevailed ? “ When his (the mortgagor’s) interest is not in ques- “ tion, the mortgagor, before foreclosure, or entry Under the mort- “ gage, is now Considered as the owner of the land.”—6 Johns. 290-3—7 Johns. 278.—2 Burr. 978.—2 Doug. 632
    
    In the state of New York all real estate is liable to be sold ort execution. In Massachusetts they have a statute regulating the proceedings in the sale of an equity of redemption on execution. *• And yet the land mortgaged may be taken by appraisment if “no deduction be made by the appraisers On account of the “mortgage.” 13 Mass. Wellington vs. Gale.— 16 Id.400, White vs. Bond. This accords with the proceedings under consideration, — and yet it is said on the other side that the amount due on the mortgage should have been ascertained, and the sum deducted from the appraisal. If we are correct in supposing that an equity of redemption before the act of 1824, might be taken by ap-praisment, it then becomes a matter of indifference to the plaintiff whether the mortgage-money was, or was not deducted. It was the duty of the appraisers to examine into the nature, in order to 'ascertain the value of the property, as in the case of an estate for life ; and if they ascertained the value of the estate, without the mortgage, then ascertained the amonnt of the mortgage and deducted one from the other, they by this measure, ascertained the value of the equity of redemption, and they could have appraised the equity in no other way. If they made no deduction, the debtor is not injured and cannot complain. The creditor only was injured; but this seems no good reason, why he should also lose the remainder of his debt.
    
      But it is objected that the sheriff made no demand of payment of the debtor. The statute provides “that if tire' debtor does not tender personal “ estate, tire officer may levy” &c. The return States that the debtor tendered no personal property, and that tire officer could find none, and nothing more is required. But “ the creditor may “ levy on real estate, though there is personal “ property, and “ though it were attached on the writ. It is tire debtor’s own fault “ that the money is not paid so as to save his land.”—8 Mass. 113.
    It is objected that the lands attached were not holden on the attachment till the execution was levied, or rather till the levy was completed by recording tire execution in tire office of the clerk of the court where it issued, and so the deed of 12th September, 1805, from Silas to Shadrach took effect. The defendants are under a mistake in supposing that the return was not completed within the five callender months ; the term of the court in which judgment was rendered ended Saturday 7th September, execution could not, bylaw, issue until 9 th September 1805, the record •of the execution was completed February 9, 1806.—11 Mass. 204,of P. vs. Bank of M. But if it were not so, yet where . -execution is levied before the lien is lost it may becompleted af-terwards. This is agreeable to the wording of the act “that personal “property shall be holden thirty days after final judgment shall “be rendered, and unless the creditor shall within thirty days take “ said property in execution, the same shall be discharged; and in •“ case real estate shall be attached the same shall be holden five “ calender months,” i. e. for the creditor to take execution and seize the property, not complete the execution or levy.—R. L. 68.
    “If land be attached on mense process and within thirty days “after judgment (for which time they are holden in Massachusetts^) “ be taken in execution, the lien created by the statute will be “ saved, though the sheriff do not complete the levy till they have ■“ expired.”—9 Mass. 393, Heywood vs.Hildreth.— 2 Caines 243.
    It is also objected, that the levy by its terms would convey no more than the interest of Silas Hathaway at the time of the levy. This truly seems trifling. Suppose the return had merely set off the lands of Silas Hathaway by metes and bounds would it be construed to mean the lands only which were his at the date of the levy, or the lands which wére his a! the time of the attachment i It is said a» gain that the interest of Silas Hathaway in the rents was not conveyed by the levy, and could not be conveyed by the appraisal. We know that both are necessary to complete the title: neither alone Could change the title; but when both concur, die title passes. But this resolves itself into the same question before discussed — that is, the regularity of the levy on the reversion and equity of redemption. If these Were duly appraised and set off, the rent follows as an incident, as Was holden in Montague vs. Gay before cited. By the statute “ all houses and lands and tenements belonging to any persón in his owiirightin fee,dr for his own life, or; the life of another, paying no rent for the same,shall stand charged with the debt,Sic. R. L. 210,s.3. All these are to be considered as real estate and sét off and appraised accordingly : Silas Hathaway had an estate in fee (the reversion) in his own right, paying no rent &c. NoW if the fee or reversion could be set off1, and the creditor acquire a title to such fee, what bécomes of the rént? Hath-1 away could have no moré right to the' rents than he could have, after parting with the fed by deed. Again, what would the cred-itqp acquire ? The tenants also had a defeasible estate. This de-feasance might never happen the creditor Would tiren have a reversion in fee, and yet no beneficial interest in tire land. If these rents are not incident to the reversion, and do not pass with it, they cau be reached’by no proceedings under our statute. They cannot be taken as rents ; the statute only gives a remedy for the’ rents and profits of lands leased fo'rlife or years. This is neither: it is to the lessee, his heirs and assigns as long as the sun shines, which makes an estate liable to be defeated by non payment of the rent.—R. L. 212, s. 8.
    But it is said that the plaintiff cannot recover without proof that the tenants had” been requested to aitorn, or some notice drat the' plaintiff claimed the rents. This would be correct had the levy been on the rents, issues, and profits of lands rented for life or years-under the 8th sec. of the statute; but cannot apply where the fee ill reversion is taken. The statute declares in proceeding under the 3d section “ that the execution and return being recorded &c. “ shall vest a title in the plaintiff, &c.” The statute giving six snonths redemption, tbe officer cannot compel tbe tenants to attorn. They were bound to take notice of the proceedings : they had become matter of record in the town clerk’s office. The case states that the defendants held adversely and were paying rent to another lándlofd ; which shows that they resist the plaintiff’s claim.— “Where the tenant denies the right of the landlord, no notice “ of the landlord is necessary. The tenant controverts the right “ oüt of which the notice is to arise. He disclaims 'the relation off “ landlord and tenant. It is an instant determination of the tenan- “ cy on his part.”—7 Bac. Abr. 488. “If possession is adverse no notice to quit is necessary.”— Cowp. 621, Doe vs. Williams. The statute of 1818 enacts, (R. L. 109,) “That the plaintiff hi “a.n action for rent shall not be required to prove a demand for the “ rent in arrear on á reentry on the premises but shall recover &c,” and as a substitute allows tenant to come in and redeem, and these tenants after judgment may avail themselves of this privilege in this action.
    It is objected further, that plaintiff cannot recover without proof that a place has been appointed for the payment of rent according to.the terms of the lease. To' this it is answered “that rents are “ always payable on the premises, and may be there tendered if “ no place is stipulated in the lease, or if the lessor is to appoint a “ place and neglect it. The provision is made for the benfit of lessor, and by neglecting to avail himself of this benefit, he does “ not forfeit the rent. The tenant in such case may pay or ten- “ der on the premises.” — 18 Johns. 447, Burnam vs. Conklin.
    
    Defendant, Shadrach Hathaway, sets up a title in himself by offering to exhibit in evidence a deed from plaintiff to John Curtis, dated 11th October, 18Í0, and one from John Curtis to himself dated 7th April, 1815. These were rejected by the court. Defendant therefore asks for a new trial. The case states that Shadrach Hathaway has holden adversely to plaintiff ever since a cause of action accrued to him, which was two years after the levy, that is, in 1808, and that the other tenants have ever since paid rent to him ; all have then holden adversely during this pe’riod. The deed, thén, Paine to Curtis, executed in 1810; was void by the the statute of 1807. And it would seem that a party claiming under a deed made ah-solutely void by statute could convey no title, even to one in possession, and such still is believed to be the correct opinion, notwithstanding the decision in the case of Jackson vs. Given et. al. 8 Johns. 105. It does not appear that this case was argued at the bar, or that the subject was much examined by the court. Kent, Ch. J. has not, as he usually does, supported his decision by authorities. He cites Keite vs. Clopton, Carter 18, but this has no bearing on the point, nor is it believed that any authority in point can be found. If the law were so, it would be productive of much mischief; the grantee in such case might recover on the covenants, and then turn round and sell and convey to the party in possession ; and in case the grantee and one in possession were bankrupt, even equity could afford no ade-r quáte relief. Such construction of the statute seems uncalled for; the party in possession may as well purchase of the one in whom was the legal title, leavingthe grantor and the grantee in the void deed where the law leaves them, i. e. the grantee without title, but with a remedy on his covenants. And it is believed that where the deed contained no covenants, an action for money had and received would lie for the consideration of the deed, or that notes given in consideration of the deed might be avoided. Had there been any decision to support the'opinion advanced in this case, Judge Kent would no doubt have availed himself of it to fortify his own. Except so far as this case is to be regarded as decisive of the question, it may now be regarded as wholly unsettled, and the court will now settle the construction of this statute much on the same ground as though the question were entirely new. The last clause in the proviso of the act doubtless contemplates a deed from the person having the title directly to one in actual possession. But probably a more satisfactory answer to the title derived by defendant, Shadrach Hathaway, under the deed from John Curtis, is that the deed, Paine to Curtis is a'deed of trust, or rather a deed on condition. The deed recites that the grantor held the title in trust for others — that the cestui que trusts had requested the trustee to assign the premises to Curtis in such manner as to enable Curtis to discharge the mortgage under which the plaintiff held tire title. And this discharge of mortgage was to be given on condition that
    
      
      Curtis at the same time secured to the plaintiff for the benefit of those for whom he held in trust. And this was to be taken on the land, that is, at the- time of sale or of the release ór discharge of the mortgage deed to the plaintiff. If this be a condition, it is in nature of a condition precedent, or in other words, the condition was to be complied with eo instanti with die conveyance from Curtis, Now if this condition had been performed, the title to the land, or to some part of it, would still have been in the plaintiff. This deed with the condition was upon record and well known to Shadrach Hathaway. It was, therefore, his duty when taking his deed from Curtis, to have given this security on the land. And the court may well presume that he did execute such mortgage security on the land. 7 T. R. 2, Doe vs. Sybert. Upon this presumption the title is still in plaintiff, and the court will intend, after verdict, that the jury did make this presumption. But if no security was given on the land, the conduct of defendant in taking the conveyance from Curtis was a fraud upon the plaintiff and the other claimants under the deed — -a collusion between a bankrupt trustee and fraudulent purchaser; and so is void and cannot avail defendants.
    But defendants claim underfhestatuté oflimitations. The action was not commenced, say they, within fifteen years after cause of action accrued to Hitchcock and Allis, or to the plaintiff. Silas and Shadrach Hathaway had a right to receive the rents and did receive them 1st Jan. 1806. The first rent would fall due to Hitch-cdch wad Allis, or to the plaintiff, 1st Jan. 1807. The lessor, or those claiming under him, Could not enter or sustain an action till two years rent had fallen due and remained unpaid. The cause of action, therefore, did not accrue to Hitchcock and Allis, or to the plaintiff, till after 1st Jan. 1808» Fifteen years would expire immediately after 1st Jan. 1823. This action was commenced 1st August, 1821, and of course within the fifteen years. It can scarely be pretended that payment of rent to Shadrach Hathaway in 1807, couldbe such a renunciation of the tenancy to the plaintiff, <or such an act showing that tenants hold adversely, as that ejectment would lie beforea right of entry had accrued under the lease. Plaintiff could take no notice of their paying money to any third person, either as rent or otherwise. It could be no worse than not paying at all to. any one. Tenants might at any time within the two years pay' rent to plaintiff notwithstanding they had paid to Shadrach Hathaway. “Ejectment will lie in no case where plaintiff has no right “of entry.”—Adams on Ejectment 70.—Taunt. 202. Nor. would ejectment lie against Shadrach Hathaway for the mere act of receiving rent of the tenants. This action will, lie in no case except where there is an actual possession — -possessiopedis; as in this case it would not lie against the tenants whose possession was actual, neither would it lie against the landlord whose possession is constructive. The statute declares (p.84, s. 8.) “That this action ' “ shall be brought as well against, the landlord or landlords, if .any “ there be, as against the tenant or tenants in possession of the premises demanded’; and if any such action be otherwise brought the “ same, shall on motion be abated.” Again, the levy was completed 9th February, 1806, by the execution and return being then recorded in the county clerk’s office. The statute gives six months redemption, which would expire ,9th August, 1806.— Plaintiff could not on any ground enter till that time had elapsed: the 15,years would expire 9th of August, 1821, but the writ was served 1st August of that year. The rent was rightfully paid to Silas Hathaway, 1st January, 1805, and to Shadrach, 1st January, 1806. No rent was due to. Hitchcock and Allis or to plaintiff till 1st January, 1807. Fifteen years added will carry it to. January, 1822. But plaintiff could not enter till two years rent had fallen due, which could not happen till 1st of January, 1808 ; add fifteen years, and it will make 1st January, 1823.,
    It maybe insisted that the judgment debtor had no estate in the premises after executing the lease to AP Clure, on which .execution could be levied. It. may be difficult to define very accurately the nature of the interest vested in the tenant, Afoses AP Clure, under the lease. It is certain that the lessor did not intend to convey, a fee, otherwise he would have used words proper to express such intent. It is, however, clearly an estate upon condition, and whether it be a fee or some less estate upon condition, is not very material. If it is supposed to be a fee, yet there is a reversion in the grantor as in case of an estate in fee tail. In estates in fee tail ln cas.e of a failure of heirs, the fee simple reverts to the donor, and this remaining estate is a reversion,-, and might under our statute be taken and set off-.on execution, and it would be more or less valuable according to . the prospects there might be of heirs who could inherit under the éntailment. — 2 Bl. Com. 75.—Sw.Dig. 101. — Incase-ofa/ee-tail special the person through whom the issue was to come might be deceased, and in such case the reversion might be of great value, and more or less according.to the age of the tenant in tail. — r There is no covenant to pay rent. The equity of redemption is. a reversion within the meaning of the 3d section of. the statute. — • But the lease.itself contains several.valuable reservasions, such as —Ml the mill priviliges and places-for water works of every kind whatever, and eight tenths of all ores, minerals, white oak and pine timber. These are reserved to. the lessor, his heirs and assigns. These may be considered as remainders within the statute, not having been granted by- the lease. This lease is also a deed upon condition. The conditions are that the .lessee his heirs and assigns shall pay the rent mentioned in the .lease, and also pay all. taxes assessed, &tc. The lease also contains a clause of reentry to -enable the lessor to compel the performance of these conditions, and in case of failure, to determine the estate. In which case all the right and interest of the lessee revest in the lessor.- It cannot, therefore, be pretended that all these do not create a reversionary interest which maybe taken in execution, under the third and fourth sections of the statute.
    It maybe objected that the levy does not coyer land contained in the mortgage deed to Simeon Hathaway, and so does not. in- * elude the whole equity of redemption, according to the case Scripture vs. Johnson, 3 Conn. R. 211-13. • In that case the creditor levied on a part of the mortgaged land by metes and bounds, and set off the land itself. The case under, consideration is distinguished from that, in this — that it apppraises and sets off all the debtor’s equity, of redemption in those lots which are described : but what was the debtor’s equity of redemption .in., those lots ?— It was a right to redeem those lots by paying, the whole mortgage money and the creditor acquired the same rights by the levy.— This proceeding is not obnoxious'to die objection made in that case. The mortgage deed is equivocal as to the description and' and qantity of land conveyed by it. It k not, therefore, certain that the return does not cover all the land contained in the mortgage'.
    After the arguments were closed, añd due consideration had,the opinion of the c'oürt was delivered by
   Hutchinson, J.

as follows ; (he having first stated the case as herein before stated.) The decision of the court in this case must involve such an amount of property, and embrace principles so important, and be made by two justices only of the court, we have felt disposed to receive all the light upon the subject, which a full investigation could afford, and become fully satisfied of the correctness of the principles we adopt, before a final decision is announced. The Cause has been so industriously prepared and so ably argued by the counsel on both sides the present term, that we may safely conclude that nó matter of importance to the parties has failed of being presented to our notice. We* are well agreed in most of the points presented, and in all that are of essential interest to the parties. To avoid repetion, these points will severally be disposed of as they are mentioned. 1st. The defendants contend that, if the plaintiff has made out ever so good a title in and of itself, he has let it lie dormant till the statute has run in their favor. Upon this ¡joint the case shows that said Shadrach claimed to hold under said deed from Silas to him of Sept. 12th, 1805, adversely to said Silas and to all claiming under said Silas, except said other defendants, who after that time, paid rent to said Shadrach according to the tenor of said lease, and was admitted by the plaintiff to have holden adversely to said Hitchcock and Allis, and to the plaintiff after the cause of action accrued to the said Hitchcock and Allis, and to the plaintiff, (if any) under the said levy. The plaintiff’s action was commenced by issuing the writ, July 30th, 1821, which was served, August 1st, of the same year. It becomes necessary here to ascertain when the adverse possession of the defendants commenced. If it commenced from the date of the deed from Silas to Shadrach, of September 12th, 1805, as contended by the defendants, the fifteen years were complete before this action was commenced. It is evident the statute could not begin to run against the title of the plaintiff till he or those' under whom he claims, bad a cause of action against the persons in possession. Until Such-event there can be no neglect. While the lands are vacant, or the persons in possession do not claim to hold adverse to the plaintiff, he may rest quietly and safely. What then, was the fact ?— Shadrach was not in possession at all after he took his deed, until he.became so by attaching to himself the possession of the other defendants. Until that event no action could be maintained against him. No action could be maintained against the other defendants until they neglected to pay their rents or taxes, so as to give a right for the landlord to reenter by the terms of the lease, (which would not make the possession adverse,) or attorned to a new landlord who claims adversely, and thereby effect an ouster of the lessor or those claiming under him. The case shows nothing with any definite certainty, when the possession became adverse to the plaintiff’s claim. Nothing surely till after July, 1806, which is the latest period of the commencement of the fifteen years to avail the defendants. This objection to the plaintiff’s recovery is then disposed of.

2d. It is objected, That the plaintiff had conveyed away his title to John Curtis, who had conveyed to Shadrach Hathaway; and that the court ought to have admitted these deeds in defence to the action. It should here be noticed that these deeds were excluded, not because the court undertook to decide the fact which might show the possession of the defendants adverse to the plaintiff at the date of his deed to Curtis ; but because it was admitted by the parties to be thus adverse, aqd so it has been now treated in argument. But it has been urged that the deed was a trust-deed and given by one trustee to another, and therefore not within the statute. The court consider that though the deed were a trust-deed, and Curtis had an interest in it, in reference to .his own share, yet it was not given to him in execution of any trust, nor to release to him his interest; but was a deed given to him as it might be vto any other person, creating in him a trust, and malting. him an agent to the plain tiff to sell the lands, mentioned in the deed, and take securities directly to the several persons for whom the trust existed, and therefore would not be void by the statute, b.ut would operate as a naked power to convey. But it is urged that,. admitting the deed void by the statute under other circumstances, yet the deed

from Curtis, being to the Shadrach Hathaway he was in possession, it is not within the meaning nor mischief of the statute.— This is urged, upon the authority of the case of Jackson vs. Given, Johns. 105. That case seems directly in point; and it may possibly be safe to treat it as law; but we entertain some doubts of its happy tendency. It seems in that case tó divest the real owner of his land, by reason, however, that his deed was not recorded prior to the new deed thus procured. The creditors of a grantor may attach the land as his property, and if a person in adverse possession should obtain a deed from die grantee, and that should defeat their attachments, it would be a new mode of divesting rights. If that case establishes a rule, there must be frequent cases of exceptions to this rule as titles pass in this state. But this question may be decided for the plaintiff upon another and safe ground. The deed from Paine to Curtis carries it's own conditions, on which alone he could convey; and the defendant receiving a deed without a compliance with those conditions, and furnishing security to each cestui que trust for his portion of the pay, can take nothing by the deed; and there was no pretence that any such conditions were complied with. Nor would the small interest of Curtis enable him to embarrass the interests of the other persons- in all these lands. He might sell, if he could, such a piece perhaps, as would pay his own portion, but could sell in no other way, nor to any greater extent and give a valid title, without obtaining security .directly to the other owners for their debts. He was not authorised to receive the money in pay, but only to receive securities which he could not aftenvard's discharge. These deeds we consider correctly excluded.

3. The defendants contend that if the plaintiff’s title would otherwise be good, it fails by reason that his deed from Silas, ■though after the attachment, was before the levy, and the levy is so worded that it takes at best only the right Silas had at the daté of the levy, and does not fasten upon the lien created by the at-táeÜment. The court, however, consider that, by the- attachment, the right of Silas is pat in abeyance out of his reach, not to be affected' by any deed of his till the lieh is, in some way dissolved,..^ and the interest is as properly called his interest for the purposes of a levy by the attaching creditor, as if no deed were-given by him to said Slid-drach ; and the expressions in the levy “ all the interest, estate, “ &c. of Silas Hathaway,” fasten lipón the lien created by the attachment as fully as if they had- rejered the expression to his interest, &c. at the date of the attachment.

4. It is objected that the execution and levy are defective in many particulars, and the objection to the admission of the same in evidence ought to have prevailed. The first defect we shall notice; is the defective description of the various lots and parts of lots of land intended to be levied upon. To support this objection several authorities have been -cited, among which are 9 Mass. 92, Tate vs. Anderson—7 Id. 475, Barnard vs. Fisher.— 14 Id. 20, Williams vs. Amory.—43 Id. 51, Chickering vs. Lovejoy et als.—11 Id. 163.—1 Conn. Rep. 470, Hitchcock vs. Hotchkiss.—Id. 551, Jabkson vs. De Lacy. Said last two are cases of sheriff’s sales. Also, 3 N. H. Rep. 140, Howard vs. Daniels. Id. 496, Mead et als. vs. Harvey et als. These cases are adduced to show the necessity of certainty in the description, and that this levy exhibits no such certainty ; and some authoritiés cited by the plaintiff afford an argument that the defendants have no reason to complain of the particular uncertainties to which this objection applies. The description appears to be very carelessly made, . and some lots are so vaguely described, the plaintiff does not contend he can hold them. And the defendants do not pretend but that the lot now in questtion and some others are well described. Yet the defendants say that the appraisal, being only of one aggregate amount of all the lots, and some being not well described, vitiates the whole levy. The court have ■ no doubt but that a defect affecting the whole levy, as if the appraisers are not sworn, or were not selected according to the statute, &c. might be avoided by either party. A defect tending to the injury of the debtor may be .avoided by him. But when the defect, like the present, so far as this objection goes, only affects the creditor, and he is disposed to affirm it, and hold what is well described, and lose the remainder, the debtor cannot complain. Where the appraisal . is thus in gross, the creditor must affirm in toto or not at all ; .for he cannot hold the lots well described, and claim a new execution for the amount of the others unless drat amount appeared by the appraisal in the levy and return. A second uncertainty complained of in the description results from a reference in the levy to a mortgage deed from Silas Hathaway to Simeon Haihaway,jun. The levy says “ these lands and certain other lands appear by the records of the town to be contained in that mortgage.” By this it seems that if the appraisers intended to appraise subject to tire incumbrance, the levy has virtually put the whole incumbrance on that part of die mortgaged premises included in'the levy : whereas it is contended that the levy should only have made the creditor tenant in common with the mortgagor. This may be a delicate point upon which to establish a rule that must govern in all cases. The statute has prescribed' no rule ; and no doubt many levies have been'made in both ways. Prob- ' ably enough, courts will feel compelled to décide botir methods to be legal, in cases' that may arise, owing'to the long practice adopted. When a creditor levies upon a part only of the mortgaged premises, and has the same appraised subject to the whole mortgage money, he has no benefit from his levy unless he redeems the whole. If he redeems the whole, the debtor cannot be injured, and has no right to complain. ' Should the mortgagee, instead of pursuing his mortgage, collect his debt on his personal securities against die mortgagor, there would be a difficulty from which Chancery alone could relieve. Such a case has probably/ never existed in the state. The other mode too has its difficulties. When the creditor by bis levy becomes tenant in common / with the mortgagor, in the event either of a redemption or foreriiosure^ or the mortgagee’s relinquishing his mortgage, the levying cred-tor or the mortgagor must resort to his writ of partition.,,' The objections to the two modes are, therefore, nearly balanced. A further objection is raised, to wit, that the mortgage'wds doran uncertain liabilty, and not for a sum certain; and treating it as a mortgage -if nothing in die end proved to be due upon it, would be injurious to the debtor: and its uncertainty is compared to a writ of attachment, served upon land, which, according to the case cited from the 7 Mass. Rep. Barnard vs. Fisher, is too uncertain to be treated asan incumbrance. This principle is correct, if the uncertainty, at the time of the levy, was such' as to make the principle applicable. On a reference to the mortgage it appears to bear date September, 20, 1803: by the condition it appears that said Simeon had signed with and for said Silas, a note to one Robinson for two thousand dollars, paymble with interest in June, 1804 and the condition is that if said Silas should well and truly pay said note according to the true intent and meaning thereof, and should in all things indemnify and save harmless die said Simeon, so that said Simeon should not have to pay said note or any part thereof, nor in any way sustain damage or trouble, then said deed to be void — otherwise to remain inforce. Thisnote had been payable something over ayear and a half-when the levy was made, and in December following, to wit, 1806, the levying creditors sent the money and redeemed the mortgage, and took a receipt from said Simeon, reciting the nature of the mortgage and a decree of foreclosure made in this county in December before the- levy, and which was to expire January 1st, 1807. These facts, with the accompanying dates, are sufficient to repel any presumption of uncertainty about the sum due on the mortgage at the time of the levy. So far, then, as a reference in the levy'to tire mortgage is urged as uncertainty in tire description of the lots of land intended to be included in the levy, and so far as uncertainty is urged in the sum actually due upon the mortgage at fire time of .the levy, the objections cannot 'avail tire defendants. I may here add in reference to an idea suggested in argument, that if the appraisers, all other things being regular, had appraised the land at its full value, allowing nothing for the incum-brance, or allowing any sum not exceeding its full amount, the defendants could not complain ; for the incumbrance is paid off by the levying creditors, and, if not included in the appraisal, this payment is a gift to the defendants, or to the debtors under whom they claim. Appraising subject to the incumbrance, and estimating the same above its amount, is the only matter in this respect of which tire defendants have a right to complain, which upon the above facts ought not to be presumed. Anotherand much more formidable objection to the levy is,' that the levy is not made upon the land, but upon the right, title, interest, &c. of said Silas in the land. The sheriff says in his return “on “ such a day, I levied and extended said writ of execution on all «the right, title, interest, estate, claim, demand, equity of redemption, remainder “and reversion, which appertained to the said debtor in and unto the “ following described lands and tenements, &c.” Afterwards he says he caused all the right, title Sic. repeating the same words, to be appraised in part satisfaction of said writ of execution Sic. at the sum of .$26,050,37. Now this objection is not that the words used would not operate in a deed to convey the land if it was itself well described in the deed : but the objection is that such words and such only contained in the levy and appraisal leave it wholly uncertain on what ground the debtor is left; uncertain what tire appraisers considered his interest and estate and equity of redemption to be. And though the amount of the mortgage might be certain as before noted, it is uncertain at what sum they considered it. It will be recollected that upon this objectioii, a new trial was granted two years ago in this cause; but the court then expressed their willingness and desire to have this, and one or ' two other points, open to further examination. We must now suppose that all the research and reasoning that could be of use, have been put in requisition ; and the objection seems not to be fully met by the plaintiff’s counsel either by authority or argument. They have raised an argument from the use of the word estate in the fourth section of the statute, p. 210. But the word estate does not there stand alone. The expression is, “when any execution “ shall be extended on any real estate, the same shall be appraised” &c. The words real estate maybe considered as th e genus, of which, the words houses, lands and tenements, mentioned in the third section on the same page, form the species. If the real estate is levied upon and appraised and well described, there is no sound objection to the use of that expression, instead of houses, lands and tenements. But the word estate has no such definite meaning.— It means, according to all the authorities cited, a man’s interest in some property. It may be applied as well to a man’s interest in personal chattels as in land.

The plaintiff’s counsel cite upon this point, the 14 Mass. R. 404, Atkins vs. Bean et al. The case itself is not much in point for the plaintiff; for there the appraisers describe the whole premises by metes and bounds, and then appraise and set off to the creditor, one undivided seventh part of the same. They do not appraise merely the debtors interest, or all his interest in the land described ; but they appraise one undivided seventh part. The fact was, the debtor did not own a seventh part, but only an eighth part; and the court decided that the levy was good to hold the eighth part which the debtor in fact owned. They considered that this mistake could prejudice none but the creditor. The counsel lay stress upon what the judge says in support of his opinion, “ that it is not necessary that the officer should set forth the “ nature of the estate taken, or the estate of the tenant for life. All the right, title, interest, &c. of the debtor would pass the remain-<c der as in a deed.” This is wholly voluntary and unnecessary to support the opinion given in the'case, and, if it means what is claimed of it, we cannot subscribe to it as law. If the first clause only means, according to the case, that not saying any thing about the interest of the debtor, but speaking only of a certain undivided portion of the land described, it may stand for law.

If in the case before us, the levy had been upon, and the appraisal of, one undivided fourth part of the land; or had said the whole of the land; or had said Silas'’ interest in said land, being the remainder after the life of A B, or being the reversion after the expiration of the term of ninety-nine years, commencing such a day named, and the like — the levy would be good in point of description to hold any estate of Silas that did not exceed that described, in point of quantity. Again, the expression, all the right, title, interest, fee. that any one could have in the land would seem necessarily to include the land itself, at least, we should be sure they appraised the whole. But when the expression is, all the interest, fee. of Silas Hathaway in the land, we may ask, what was his interest? If, after an expensive litigation this can be determined, we may ask another question, which, according to the rules of law, can never be answered. That is, what did the appraisers consider his interest to be ? If it apppeared from the levy itself that the appraisers considered his interest less than it was, that would not hurt the levy. But if they considered it greater than it was, that would destroy it altogether. And no less fatal is the total uncertainty of what they considered his interest to be.— hfheir varied expressions imply a hesitancy what to call that interest; and the testimony in the case, and the learned arguments upon it, would lead one not to wonder, if the sheriff and appraisers, without such aids as are now afforded, should indeed hesitate what to call that interest; and if they knew not what to term it, they could not well know its value.;'

This disposes of the whole case. But the defendants’ counsel have raised another cardinal objection, that if the levy were ever so regular as a levy upon land, yet said Silas did not own the land; that he had no interest of which a creditor could avail himself otherwise than by levying upon tire rents under the eighth section of the statute ; and have cited several authorities to this point. We are supposing this lease for the present purpose, as the counsel have supposed it, regularly recorded before tire attachment of HitchcocJc and Allis. If it was not recorded, probably, as regards the attaching creditors, the debtor owned the/be. This cannot have been overlooked by counsel. The case made by agreement, has probably presented the fair merits of the dispute.

In adverting to the lease attached to the case, we find its terms of duration are not marked by those words used by any elementary writers to denote the different degrees of interest in land. It is not a lease for years nor for life; nor alease to the lessee and his heirs and assigns forever; but to hold to him and his heirs as long as water runs, grass grows or the sun shines. Beyond this none can enjoy a remainder or reversion. The land can be of no value when the sun ceases to shine upon it. These words must be considered equivalent to the term forever. Silas Hathaway then had no remainder or reversion at die time of the levy. He had conveyed no estate with a limitation upon which it could revert. He had only a right to receive the rents, and re-enter upon the failure of his lessee to pay the rents, taxes, &c. and by the statute of 1818, affirming what the courts had long before treated as common law, he could not re-enter in fact, if the rents, &tc. due were ■ paid into court after action brought to obtain possession.

This interest is not at all a tangible property, susceptible of a levy under the third section of the statute. It is probably within the equity of the-eighth section, under which a creditor may levy upon the rents and profits and compel the tenant to attorn. That section to be sure', speaks of leases for life or years insuring rent. This is not technically a lease for years; but its continuing so many years would not afford a very equitable reason why a creditor 'might not levy upon the rents of some of those years. But, allow it to be a case omitted in fire eighth section, still that will not place it within the third section.' With regard to the reservation of mill-privileges, ores, pine and oak timber, Sic. there is nothing in the case that shows any thing to exist on this lot that is claimed as being within this reservation. This objection to tire plaintiff’s title is adjudged valid.

Marsh and Bailey, for the plaintiff.

Brayton and Van Ness, for the defendant.

Further objections important in themselves, become unimportant in this cause by the decisions now made. The recording of the levy in tire county clerk’s office appears to have been one day after tire five month's expired. The authorities cited from Mass. JRep. bythe plaintiff’s counsel, show that the recording there has been considered, in certain cases, as. referring in its effect to a pri- or date, when the levy was otherwise complete and ready for record. There, however, the sheriff delivers seizin when he makes his levy. Here, the debtor has six months in which to redeem before he can be turned out of possession. We rather incline to the opinion that the recording, in this state, is essential to the levy j and must be made in both offices within the five calendar months. But as this is an important question of practice and of title, and unnecessary now to bo decided; and as two only of the justices of the court can sit in this cause, we make no definite decision upon this point.

Further objections are made to the plaintiff’s recovering, such as the recording the word “Mattocks” instead of “Matthews,” in the town clerk’s office; the want of proving notice to the tenants to attorn, and the appointment of' a place for the payment of the rent according to the stipulations in the lease; but without any definite, and unnecessary disposition of these, a new trial is granted, and the cause must pass to the County Court for such new trial.  