
    Josiah Lacey, Eli Smith, Ezra Gregory, jun. Grissel Hawley and Abijah Hawley, executors of Aaron Hawley, Stephen Hawley, Daniel Hawley, Caroline Hawley, Susan Hawley, Jane Elizabeth Hawley and Matilda Hawley, against Agur Tomlinson:
    A mortgagee, by releasing to a third person, all his right in the mortgaged premises, does not thereby, discharge his lien upon the land, acquired by attaching it as the property of the mortgagor, prior to the execution of there-lease; and af-terfinal judgment in the action against the mortgagor, may redeem the land, on paying what is due in equity to such third person.
    error.
    THIS was a bill in chancery, brought by the defendant in error against the plaintiffs, praying for liberty to redeem certain lands.
    It was stated in the'biil, that on the 8th day of October, 1807, Richard Hubbell was seised in fee, of about 22 acres of land in the town of Fairfield, being the land in question ; and on the same day, mortgaged the land to Tomlinson, to secure the payment of 487 dollars, 33 cents ; that Hubbell, on the 17th day of March, 1808, mortgaged the same land to Eli Smith, to secure the payment of 308 dollars, 23 cents ; that Tomlinson, on the 7th day of November, 1808, for the consideration of 160 dollars, (the residue of his debt against Hubbell, having been previously paid,) released his right and title to the land, to Smith ; that Hubbell, on the 25th day of November, 1808, released his interest in the land to Josiah Lacey; that Smith, on the 28th day of November, 
      1803, diso released his right anti tillo to Lacey; and that on (lie 1st day of November, 1808, prior to the dato of HubbeWs release deed to Lacey, and subsequent to the date of his mortgage deed to Smith., the defendant in error, in an action in his favour, against UuhbrJl, attached the land in question, as the property of lluhlull, and on the 20f.ii day of May, 1803, within four months aih r final judgment in such action, caused the land to be levied upon, appraised and set off in execution, in part satisfaction of his debt; subject, however,, to the equitable interest of Lacey, acquired by virf ue of Smith's release deed to him ; and that Tomlinson, by virtue of the levy of his execution, had acquired the right of the equity of redemption.
    During the pendency of the origina! bill, Lacey, on the 4th day of January, 1809, conveyed one moiety of the mortgaged premises, to Ezra Gregory, jun. and the other moiety to Aaron Hawley; and afterwards, before the final decree, ‘ Hawley died, leaving Grisscl Hawley, his widow, who with Abijah Hawley, were his executors, and Stephen Hawley, Daniel Hawley, Caroline Hawley, Susan Hawley, Jane Elisabeth Hawley, and Matilda Hawley, lbs children and only heirs at law ; — all of whom were cited in, and made parties to the bill.
    The defendants, having prayed oyer of the release deed from Tomlinson to Smith, pleaded in abatement, for the insufficiency of the bill. The deed produced on oyer, was of the following tenor, to wit : “ To all people to whom these presents shall come,” &c, “ Know ye, that I Agur Tomlinson, of Huntington, in the comity of Fairfield, in consideration of one hundred and sixty dollars, received to my full satisfaction of Eli Smith, of Stratford,i n said county,do remise, release, and forever quit-claim unto the said Eli Smith, and u.uo his heirs and assigns forever, all such right, title, claim and demand whatever, as I the said releasor have, or ought to have, in, or to a piece of land in Fairfield,” &c. “ To have and hold the premises, with all their appurtenances, unto the said releasee, and his heirs and assigns forever; So that neither I the releas- or, nor my heirs, nor any other person under me, or them, shall 
      
      ti.crettfler hare any claim, right or title in, or to Ihí premises, or anti pari thereof „• hid, ihenfrom, / and Huy are, by these presents, forever bar nil and secluded," etc.
    The Superior Court adjudged the bill sufficient ; anti having ibnml the lucís therein stated, to he true, ordered and decreed, that a' the plaintiff, wiihin a limited period, should pay to the clerk os’ the court, for Ihe u-e of the defendants, the sum of 557 dollars, 97 cents, with interest from the time of liquidating the account, to the time of payment, all the right and title of the defendants, and each and every of them, both in law and equity, should vest in the plaintiff, and his heirs, immediately on such payment.
    To reverse the judgment and decree of the Superior Court, the present writ of error was brought.
    In addition to the general error, the insufficiency of the bill was specially assigned as cause of error.
    
      Daggett and J. Backus, for the plaintiffs in error,
    contended, that Tomlinson, from the particular expressions used in his deed to Smith _ released the right or lien, acquired by virtue of his attachment, as well as his equitable interest, derived from the mortgage deed of Hubbell. A general release will always operate upon an estate, which, upon some contingency, may be hereafter acquired; provided, the contingency be not too remote. Lampet's case, 10 Co. 47. a. 53. The deed of Tomlinson to Smith, may be deemed a covenant to the grantee, against any claim whatever, in favour of the grantor ; and will enure to the benefit of the former, by extinguishing the lien acquired' by the latter, by virtue of his attachment.
    
      R. M. Sherman, argued for the defendant.
    He cited Co. Lit. 264. ⅞. 265. a. 265. b.
    
   Swift, J.

The question in this case, is, whether a mortgagee, by releasing all right and interest in the mortgaged premises, discharges a lien upon land, acquired by a previous attachment ?

No right can pass by a release, but what exists at the time of the release made. Co. Lit. 265. a. An attaching creditor acquires no title, right or interest in lands, by force oí an attachment. The attachment has no effect, but to take the land into the custody of the law, to secure it against the alienation of the debtor, and the attachment of other creditors, and to hold it to be levied upon by an execution, when judgment shall have been obtained. It is by force of the levy of the execution, that any right or title to the land is acquired. Until that time, it remains in the debtor, and he can prevent the attaching creditor from ever acquiring any title, by the payment of the debt Of course, the attaching creditor has but a mere possibility of acquiring a right; which cannot be released.

This case is precisely analogous to the case of the conusee of a statute in England. Co. Lit. 265. b. A conusance there, gives a similar right to levy an execution on lands, as an attachment here ; but if the conusee release to the conusor, all his right in the ¡and, yet afterwards, he may sue execution. Barrow v. Gray, Cro. Eliz. 551. Lampets’ case. 10 Co. 47. relied upon by the counsel for the plaintiff, is not ad idem. That was a devise of a term of 5000 years, to John Momee, during life, and after his decease, to Elisabeth, who released to John, after he came into possession ; and the release was determined to be valid. Here, Elisabeth acquired a right, by the devise, subject to be defeated by the contingency of her dying before John ; but, if she survived him, the right originated from the devise. This was a contingent interest, which might, by possibility have been defeated ; but stilt, it was an intérest that could be released. But in the case under consideration, no right to the land. was created by the attachment. There was merely a possibility, that a right might have been created, by the levy of the execution ; but the right would then originate with the levy, and being a right or interest, to be acquired by a future act, could not be released,

I am of opinion, that there is no error.

In this opinion, all the judges concurred.

Judgment affirmed  