
    Frink Roberts versus Jonathan L. Whiting.
    Of extending an execution on the estate of a tenant by the courtesy.
    [An execution against such tenant may be extended on the land by metes and bounds, or on the rents and profits. The tenant, in such case, in a writ of entry sur disseisin, cannot, under the plea of mil disseisin, dispute the title of the demandant claiming by virtue of such levy of an execution against him.—Ed '
    
      This was entry sur disseisin, and came before the Court upon the following statement made by the parties. “ It is agreed that Barnabas Barker, father of Ann Whiting, wife of the tenant, died in the year 1798, leaving a will, whereby he devised one half of his dwelling-house, and one half of all his other real estate, to his wife Elizabeth Barker during her lifewith permission, if necessary, with the advice and consent of J. Kettell and A. Tufts, joint executors with herself, to sell so much of the real estate as might be sufficient to supply her necessities, and * render her situation comfortable; the remainder of [ * 187 ] the real estate, if any, to be equally divided among his several children; four of whom, with the widow, are now living.
    On the 7th of October, 1807, the said Ann, then sole, conveyed her distributive share of her father’s estate, with warranty, to one John Brown, for a valuable consideration. The demanded premises are a part of the estate of the said Barnabas, mentioned in his will; and on the 8th of October, 1808, were conveyed by the said Elizabeth, for a valuable consideration, to the said Ann, then wife of the tenant, by her deed of that date duly acknowledged and recorded. It can be proved by the testimony of the said Elizabeth, and if she is a legal and competent witness, is to be considered as a fact agreed, that sickness and other circumstances induced her to apply to her co-executors for their consent, and that they gave their consent accordingly, to sell the premises as aforesaid. One of the said co-executors is dead; and the other does not remember giving such consent, but thinks the circumstances of the executrix were such that he should have given it. The tenant thereupon entered upon the premises, and became seised thereof in right of his wife, and continued so seised until the levy of the demandant’s execution hereafter mentioned. There has been no division of the testator’s estate among his heirs. In. 1814, the said Ann died, leaving one child, now living, and heir to his deceased mother. In February, 1814, the tenant, who is father of the said child, was appointed his guardian, with the custody of his portion of his said grandfather’s estate; and gave bond accordingly. In June, 1817, the demandant recovered judgment against the tenant, for a just debt, amounting to 1669 dollars damage, and on the 18th of the same month caused his execution, issued upon that judgment, to be extended on the premises, as the freehold of the tenant, as tenant by the courtesy; and by said extent the whole of the premises, conveyed to the said Ann as aforesaid, were set off to the * demandant for [ * 188 ], the term of the tenant’s natural life, in satisfaction of the said execution. The tenant has hitherto kept possession of the premises, and held the demandant out. If the Court shall determine upon the above facts, that the demandant ought to recover the premises, the tenant is to be defaulted, and judgment accordingly; otherwise the demandant is to become nonsuit, and costs to be awarded to the prevailing party.”
    
      W. Austin, for the tenant,
    was called on by the Court; and he contended that the demandant’s execution was improperly extended on the land as an estate of freehold. The whole intent of the law, in creating this estate by the courtesy, is that the husband may be enabled, from the rents and profits, to support the children. The execution ought then to have been levied upon the rents and profits, according to the provision of the statute of 1783, c. 57, § 3. Nor is this a mere technical objection. From extending on the land, as was done here, the heirs are put to their action on the death of the tenant by courtesy; and the judgment creditor has not so fair a chance of making his debt .
    The deed of Elizabeth Barker conveyed nothing. She was tenant in common with the children of the testator, and could not sell a part of the common lands by metes and bounds. The whole was given to the children, subject to the occupation of a moiety by the widow during her life .
    The case shows no legal evidence of the consent of the co-executors to the sale by the widow. She could be no competent witness to prove that fact, being, by force of her covenant, interested in the event of the suit.
    
      Fuller, for the demandant.
    
      Whiting was seised of the land at the time of the extent, claiming under a deed duly executed, acknowledged and recorded. If he was in by disseisin only, it would be enough to support the extent, for the purposes of this action. The case here was very different from that of Barber vs. Root. In that case the husband was merely entitled to take the rents and profits in right of his wife .
    [ * 189 ] *The conveyance by the widow was a valid execution of the power under the will. It was not intended that she should be limited to sell an undivided moiety; but such part only as she and her co-executors should think necessary for her comfortable support.
    She was not interested in the event of the suit. If the demand-ant recovers, the verdict in this action could not be used against her. If the heirs were demandants, the case would be different But her evidence is not necessary to the demandant’s recovery; since the tenant was in possession when the extent was made.
    
      
       10 Mass. Rep. 260, Barber vs. Root.
      
    
    
      
       12 Mass. Rep. 348, Bartlett vs. Harlow. —3 Johns. 459, Jackson vs. Brown.
      
    
    
      
       15 Mass. Rep. 439, Chapman vs. Gray.
      
    
   Parker, C. J.,

delivered the opinion of the Court. The demand-ant claiming the land in question by virtue of a judgment against the tenant, and an execution pursuant thereto, levied upon the same as the tenant’s estate; the tenant cannot under the issue deny the demandant’s title. If the estate was the tenant’s, the levy being regular, it passed to the demandant; if the estate was not his, he has no interest which entitles him to contest the demandant’s claim.

If he intended to defend the right of his son, as heir to his grand father, he should have pleaded a special non-tenure, and set up the right of his child.

That right will not be barred by a recovery in this action. But it will be well, in order to prevent premature claims, to see how tne title stands. If the conveyance of Elizabeth, the widow of Barnabas, be valid, then the husband of the grantee, the present tenant, became at her death tenant by the courtesy ; and his estate passed by the levy to the demandant. Whether that conveyance be valid or not, depends upon the authority given to Elizabeth in the will, and her exercise of that authority according to the will. She had power, with the advice and consent of the other executors, to sell and dispose of the real estate, if necessary for her comfortable support. Their consent may be proved by parole. If she was a competent witness, it is proved.

* The objection to her competency is, that she is in- [ * 190 ] terested. If she is, it is only to maintain her conveyance ; and that is as much for the benefit of the tenant in this action, as for the demandant. Her covenants are, that she has authority to sell, &c. and both the parties in this suit are interested in establishing that authority; so that a verdict in this action, as far as it may rest upon her testimony, cannot affect her in any action, which may be brought upon her covenants. She is a competent witness, and the fact of authority being proved, her deed is established.

As .to the objection, that the execution was not rightly levied upon the land, but ought to have been upon the rents and profits, we do not think it is maintained. The case of Barber vs. Root only decides that the rents and profits might have been taken in such case ; and a usage to the contrary of this is there recognized. A levy upon the land passed all the interest which the tenant had, and no more. It was not a case in which the statute required the rents and profits to be taken ; because it might be set off by metes and bounds. At present we see no reason why either mode of satisfying the execution might not be adopted in such a case; but the mode adopted in this case was without doubt lawful.

Concerning the objection, that, as by the will Elizabeth Barker became tenant in common with her children, and therefore could not convey any part of the estate in severalty; the answer, that her power to sell extended over the whole estate, is sufficient. Her authority to convey was not limited as her right to enjoy it, she being permitted to sell so much of the real estate, as might be sufficient to supply her necessities, and render her situation comfortable.

Such being‘the opinion of the Court upon the case submitted, the demandant is entitled to judgment for possession.

Tenant defaulted.  