
    Nehemiah Wyman versus Michael Brigden.
    Lands specifically devised are liable to be levied upon by the creditors of the testa tor, equally with other lands, of which he died seised.
    Lands of a deceased testator are liable to be taken in execution by a creditor, notwithstanding the executor,being residuary legatee, has given bonds to pay the debts and legacies.
    Lands of a deceased testator are liable to be taken m execution, although in the possession of an alienee of devisee.
    The extent of an execution on lands gives the creditor an actual seisin of the lands.
    If an execution against the estate of a deceased testator be levied on lands in possession of an alienee of a devisee, and within the year the land be redeemed by the alienee, — in an action of covenant against the devisee, he will recover, as damages, the redemption money and interest
    This was an action of covenant broken, brought in the county of Middlesex, upon a deed made by the defendant, conveying to the plaintiff certain tracts of land in Charlestown, with the usual covenants of warranty, &c.
    The parties submitted the action to the determination of the Court, upon a statement of facts, which were substantially as follows, viz.: — that the defendant made the deed declared [*151 ] *on ; that the late Moses Gill, Esq., died seised of the land described in the deed, and by his last will, duly proved, &c., devised the same specifically to the defendant in fee; that W. N. Boylstone, having, as administrator with the will annexed of Thomas Boylstone, recovered a judgment against the estate of said Gill, in the hands of his executor, for the sum of 106,176 dollars 66 cents, caused execution upon that judgment to be levied upon the said land, and received seisin and possession thereof from the sheriff in due form of law; that the plaintiff, at the expiration of a year from the said extent, (the defendant having neglected to redeem the said land,) paid the said Boylstone the sum at which the said land was appraised and set off to him, and the interest thereof, amounting to the sum of 1800 dollars ; whereupon the said Boylstone executed a release to the plaintiff of all the right which he, the said Boylstone, had acquired to the same land in virtue of said execution and extent; but the plaintiff has never been out of the actual possession of said land, nor evicted therefrom, unless the levy aforesaid amounts to an eviction ; that the said Gill died seised and possessed of real estate sufficient to pay all his just debts, wine*' he devised to Moses Gill, his executor, in general terms, and by way of residuary devise ; that after the decease of the testator, the said executor gave bond with sureties to the judge of probate for the county of Worcester, conditioned to pay all the debts and legacies of said testator; that the said lands described in the defendant’s deed, at the time when they were conveyed by the defendant to the plaintiff, were of the value of 800 dollars, and are now of the value of 3000 dollars.
    If, upon this statement, the Court should be of opinion that the plaintiff can maintain his action, the defendant to be defaulted, and the Court to assess such damages as the plaintiff is by law entitled to recover; if the Court should be of a different opinion, the plaintiff to discontinue his suit, and the defendant recover his costs.
    The cause was shortly argued, at the last October term at Cambridge, by Ward for the plaintiff, and Bigelow for the defendant.
    
      Bigelow
    
    contended, 1. That a judgment creditor cannot *by law levy his execution on land specifically de- [ * 152 ] vised, if there are other lands sufficient not so devised, as was the case here.  The executor in this case could not have obtained license to sell this land thus specifically devised, until he had accounted for all the personal estate, and such of the real estate as was included in the residuary devise to himself.
    2. The executor of Mr. GilPs will gave bond for the payment of the debts and legacies, pursuant to the 17th section of the statute of 1783, c. 24, by which means an abundant remedy is furnished to the creditors and legatees, and the remedy against the testator’s lands is unnecessary, and, indeed, nugatory; whence it may be well argued that the lien otherwise supposed to exist upon those lands is dissolved. But,
    3. It is conceived that a creditor cannot by law extend his execution on any lands, except such as the executor might have authority to sell, either by powers vested in him by the will, or derived from a license of Court, pursuant to the statute. It is very clear that the executor could never have authority under the will to sell this land, until he had exhausted all the estate given to himself by the residuary clause; nor could he have obtained a license from the Court, as was before observed. The plaintiff being seised of this land by a bond fide purchase from a devisee, the lien upon it in favor of the creditors was by that transfer annulled and dissolved.
    4. Unless a previous decision to the contrary had taken place, to which the Court would adhere, Bigelow was inclined to argue that the levying of the execution upon this land did not of itself amount to an eviction. If it gave the creditor a right of entry, yet no such entry was ever made, and the case expressly states that the plaintiff has never been out of the actual possession of the land.
    As the parties have submitted the assessment of the damages in this case to the decision of the Court, the defendant suggests that the amount paid by the plaintiff to Boylstone constitutes the largest claim which the plaintiff can make. Perhaps the utmost the defendant ought to be held to pay, is the sum he received for the land, with interest.
    * Ward.
    
    Every devise of land is specific, for even a residuary devise is of such particular and specific lands as the devisor shall die seised of.  But if there was any distinction between the different manner of devising, yet our statutes have entirely abrogated such distinction. For by statute of 1783, c. 32, § 7, all the real estate of any testator, however devised, or whether devised or not, is made liable to be , levied upon, by a judgment creditor, for the debts of the testator. And by statute of 1783, ". 24, $ 18, provision is made to compel a contribution from legatees, devisees, and heirs, in case any real estate devised shall be so taken in execution by a creditor of the testator. If, then, the argument raised by the defendant, from the devise to him being a specific one, has no weight, the case of Gore vs. Brazier 
       is an authority as to the other points made in the defence. That decision was made with great deliberation, and independent of its weight as an authority, it would be no easy task to answer the arguments adduced by the Court in support of the several points decided.
    
      
      
        Clarke vs. Sewell, 3 Atk. 96. —2 Com. Dig. tit. Chancery, 3, V. 13.
    
    
      
       7 Vesey, Jun., 137. — Roper, 27.
    
    
      
      
        Ante, vol. iii. 523
    
   ■ The cause was continued nisi, and at this term, the opinion of the Court was delivered as follows by

Parsons, C. J.

[After reciting the facts.] On these facts the question arising is, whether the plaintiff was, or was not, legally ousted by Boylstone, the judgment creditor.

The defendant, denying the ouster, has made several objections against the plaintiff’s recovery.

First, that the devise of the lands conveyed was a specific devise, and was not liable for the payment of the testator’s debts by the levy of a creditor, until all the lands given to the residuary legatee had been first applied; because, until then, the executor could not have obtained a license to sell them for the payment of the testator’s debts.

It is our opinion that this objection cannot prevail By the seventh section of the statute of 1783, c. 32, the real estate of any testator is liable to be taken in execution upon judgments recovered against executors for debts due from the testator. And by the eighth section of the same act, *any execu- [ * 154 ] tor delaying or neglecting to pay the debts due from the testator, and thereby subjecting the testator’s lands to be taken in execution, shall be deemed guilty of waste. And by the eighteenth section of the statute of 1783, c. 24, when real estate devised to any person shall be taken in execution for the payment of the testator’s debts, the other legatees and devisees shall be held to contribute fro rata. From these provisions, it is manifest that all the lands of the testator, as well as his chattels, are liable to be taken in execution for the payment of his debts, if not satisfied by the executor; and the judgment creditor may levy his execution on any of those lands at his election. If any devisee or his assigns are injured, the remedy is by action of waste against the executor, if he has been guilty of unfaithful administration; or by an action for contribution against the other legatees and devisees. The right of the creditor is the same, when the land taken in execution is de vised by a particular description, or passes by general words to the residuary legatee. For in all cases a devise of lands is considered as a specific devise, whether it be devised by a special or a general description, to a particular devisee, or to the residuary legatee. Vide 7 Ves. Jun. 137.

Another objection is, that, in this case, the executor had given to the Probate Court a bond, with condition to pay the debts and legacies agreeably to the seventeenth section of the statute of 1783, c. 24, and that by force thereof the lien of the creditors on the testator’s lands was discharged.

We do not think that this objection has any weight. This bond is given at the election of an executor, who is residuary legatee, for his benefit, to excuse himself from returning an inventory, and from settling an account; and not to discharge the lien of the creditors by substituting a new security. Whatever remedy a creditor may have on the bond, it is a cumulative remedy. This point was determined in the case of Gore vs. Brazier.

The third objection is, that, at the time of the levy, the plaintiff was seised under a conveyance by the defendant, and that the creditor’s lien was taken away by a bona fide sale by the devisee.

[ * 155 ] * We are satisfied that this objection ought not to prevail; otherwise the intention of the statutes, providing that the real estates of testators shall be liable for the payment of their debts, might be easily defeated. A creditor cannot recover judgment for his debt until the expiration of a year from the testator’s death, during which time it would be easy for the devisees to aliene all the estates devised to them; and it is not supposed that they are accountable for the proceeds of the sales either to the executor or creditors. But we do not mean to be understood as deciding that a creditor, by unreasonable neglect and delay in pursuing his remedy, may not be deemed to waive his lien on the testator’s real estate. In this case, the remedy was promptly and seasonably pursued. This point w'as also adjudged in the case of Gore vs. Brazier.

The last objection is, that, the plaintiff being seised and in possession when the levy was made, the levy did not give the judgment creditor an actual seisin, but only a right to be seised on a subsequent entry ; and as the case does not state such a subsequent entry, the plaintiff has not yet been lawfully ousted.

It appears to us that this objection must have the same fate as the others. The statute of 1783, c. 57, § 2, and <§> 3, expressly provides that, when lands are taken in execution, the officer shall deliver seisin and possession to the creditor, who shall be answerable for the net profits to the debtor, if he shall redeem by paying the debt and interest within a year. And by the statute of 1788, c. 51, § 3, it is declared that when lands shall be extended upon, to satisfy an execution recovered by an executor or administrator, for a debt due to the deceased, he shall stand seised of those lands for the use of the persons who were interested in the debt. It is therefore very clear that, when an execution is duly levied on lands liable by law to be extended upon, in satisfaction of the execution, the judgment creditor is, by virtue of the. levy, actually seised of those lands. This point was fully considered and settled, when the judgment debtor was the ter-tenant, in the case of Lang- [ * 156 ] don vs. Potter & Al., *and when the alienee of the devisee was the ter-tenant, which is the present case, in the often-cited case of Gore vs. Brazier.

The parties having agreed' that at this time the land is worth 3000 dollars, that it was in fact appraised to the judgment creditor at a much less sum, and that the plaintiff defeated the levy by paying within the year the appraisement with the interest, the defendant has argued that, in this case, the value of the land, at the time of the ouster, is not the measure of damages, but that the sum paid to the plaintiff, to release the same, with interest, is all that he can legally claim. And we think that the defendant is right. The plain tiff, by virtue of the defendant’s deed to him, not only derived from the defendant all his estate in the land, but also an equitable right to redeem it, if it should be taken to pay the testator’s debts. This equitable right, thus obtained, he exercised to defeat the levy, and what benefits he received by it must accrue to the defendant, from whom it was derived. The plaintiff cannot, therefore, be considered as now in possession under a new title, but as under his former title, having removed an encumbrance on. it. For the necessary expenses he incurred in extinguishing the encumbrance, he is entitled to demand a reimbursement from the defendant. The redemption paid by the plaintiff, with interest from the time of pay ment to the time of the judgment, forms the amount of the damages the plaintiff can recover.

Let the defendant he called, and judgment he rendered for the \plaintiff 
      
      
        Ante, vol. iii. 215.
     