
    David R Poignard versus Ebenezer Smith.
    The purchaser of an equity of redemption sold by the sheriff on execution, obtains by tlie sale a seisin of the land, unless the mortgager is disseised at the time of the sale ; in which case he obtains only a right of entry, and in order to maintain a writ of entry counting upon his own seisin, he must actually enter.
    <ut whether lie might not, without an entry, maintain an action by declaring specially upon the seisin of the mortgager, qucere,
    
    t disseisin may be effected without the actual knowledge of the owner of the land, acts of notoriety, such as putting a fence round the land or erecting buildings upon it, being constructive notice to all the world.
    Vhere in a writ of entry the tenant files a claim for improvements, and the demand-ant claims that the value of the land without the improvements may be found, it is not necessary that a special issue be framed on the possession of the tenant; and if he has not been in possession six years, the jury may find that fact as a reason for not inquiring into the value of the improvements.
    Writ of entry to recover possession of a lot of land on •he (late) mill pond, in Boston. The demandant alleged his own seisin within thirty years, and a disseisin by the tenant. The tenant pleaded non disseisivit. He likewise filed a claim for improvements, pursuant to the statute, and the demandant filed a claim that the jury should find the value of the land without the improvements.
    At the trial, before the Chief Justice, the demandant pro duced office copies of a deed from the proprietors of the mill pond to John Peck, dated March 30, 1810, — of a deed of mortgage from Peck to Ruggles Whiting, dated March 31,
    1810, — and of a judgment recovered in September, 1826, by Isaac Warner against Peck, and an execution thereon, on which the right of equity to redeem the mortgage was taken and, on the 13th of November, 1826, was sold and conveyed by the sheriff to the demandant.
    At the time of the taking and sale, the tenant was m pas session of the land, having three several shops or buildings thereon, for which he was receiving rent. Both Whiting and Peck were alive, but out of the Commonwealth at that time, and no person, as the representative or agent of either, was in possession of the land.
    The tenant objected, that under these circumstances, the sale and deed of the sheriff conveyed no seisin to the demand-ant; so that whatever right may have been conveyed, this actian could not be sustained ; but the objection was overruled. The Chief Justice instructed the jury, that the title and right to recover were sufficiently made out by the foregoing evidence, and that as the tenant had not attempted to show any title, or any possession long enough to constitute a defence, their verdict on the general issue must be for the de mandant.
    There were no buildings on the land six years before the commencement of the suit, except a blacksmith’s shop at the eastern end of it, which had been erected there by one Russell, on the supposition that the lot belonged to one Spear. The mistake being discovered, Russell quitted the possession of the shop and land ; whereupon one Roberts, the occupant, gave the tenant a written memorandum, undertaking to pay him rent. This was on the 21st of October, 1821, within six years before the commencement of the suit. The tenant then rebuilt the blacksmith’s shop, and soon after erected a carpenter’s shop near the middle of the lot, and put at the western end another building, to which was attached a small office or counting-room drawn there from some other place ; and ever since, the tenant has occupied or received rent for these several buildings.
    There was likewise evidence on both sides, in regard to acts of ownership on the part of the tenant more than six years before the suit was commenced.
    The jury were instructed, that if they were satisfied, from the evidence, that the acts of possession by the tenant, if any, before the six years, were done with a design to appropriate the lot to himself, they ought to go into the inquiry of the im provements and of the value of the land ; but if not so satisfied, they need not malte the inquiry. They returned a verdict, that the tenant had disseised the demandant, and that the tenant had not the actual possession six years before the commencement of the action.
    A new trial was moved for, because of misdirection in regard to the action’s being sustained without proof of seisin, as before stated ; because the verdict was against the evidence in regard to the actual possession of the tenant, so as to bring him within the statute ; and because the finding of the jury as to the six years’ possession, was a finding of a fact not in issue. ~
    
      March 22d.
    
    
      Jl. Toionsend and F. Dexter, for the tenant,
    insisted that me mortgager was not seised at the time of the sale on execution; Kennebeck Purchase v. Springer, 4 Mass. R. 416; Boston Mill Corp. v. Bulfinch, 6 Mass. R. 229; Brown v. Porter, 10 Mass. R. 93; Cummings v. Wyman, ibid. 464; Warren v. Childs, 11 Mass. R. 222; Higbee v. Rice, 5 Mass. R. 344; Small v. Procter, 15 Mass. R. 498; and so no seisin, and perhaps not even a right of entry, passed by the sale. St. 1798, c. 77, § 5; Wellington v. Gale, 7 Mass. R. 139, and 13 Mass. R. 489. The allegation, therefore, of the demandant’s seisin is not supported. See also Langdon v. Potter, 3 Mass. R. 219; Willard v. Mason, 5 Mass. R 241; Thorndike v. Barrett, 2 Greenl. 312.
    As the pleadings or motions stood, in regard to the limitation and settlement act, the jury were not authorized to find that the tenant had not been in possession six years. When the tenant alleges that he has had possession for that length of time, and makes a claim for betterments, the demandant ought to give notice, if he intends to contest the duration of the possession. By merely requiring the jury to find the value of the land without the improvements, he admits that the tenant has been in possession six years. Bacon v. Callender, 6 Mass. R. 303.
    
      Shaw and Bartlett, contra.
    
    The deed of the sheriff, of an equity of redemption, passes an actual seisin, so that the purchaser is not obliged to enter before he can bring a writ of entry. Anc. Chart. &c. 501; St. 1783, c. 57, § 4; 1798, c. 77, § 3, 5; Gore v. Brazier, 3 Mass. R. 523. If the mortgager is disseised, nothing will pass by his deed ; but with the sheriff’s deed it is otherwise. By that, all the right which remained in the mortgager will be conveyed. Porter v. Millet, 9 Mass. R. 101; Wellington v. Gale, 7 Mass. R. 138, and 13 Mass. R. 483. Here the mortgager had a right to bring a writ of entry without making an entry, not having been disseised twenty years, and consequently the demandant had the same right. The sheriff, however, in levying on the equity of redemption, may be considered as making an entry, so as to defeat the disseisin ; to effect which an instantaneous seisin will be sufficient. Stearns on Real Actions, 16, 17. If any one was disseised, it was the mortgagee, and not the mortgager ; for an equity of redemption is an incorporeal hereditament, of which, from its nature, there cannot be a disseisin. 13 Mass. R. 487; Stearns, 13, 46; Cholmondely v Clinton, 2 Meriv. 357. But there was no disseisin, as the mortgager had no notice of any adverse claim. Pray v. Pierce, 7 Mass. R. 381.
    
      April 5th.
    
    The demandant’s motion is that the jury may find the value of the land without the improvements, if they shall find that the tenant has had possession for six years ; so that there is no admission of such a possession.
   Parker C. J.

delivered the opinion of the Court. The question in this case, which has principally attracted our attention, is, whether the sale and deed of the sheriff, under which the demandant claims, conveyed such a seisin of the premises as will sustain the action without a previous entry.

The demandant declares upon his own seisin, and must prove it. If the mortgager was seised at the time of the seizure on execution, then the sheriff’s deed would have conveyed his seisin to the purchaser, for the statute gives the same effect to the sheriff’s deed as the mortgager’s would have, had he himself conveyed the right of redemption or the land subject to the mortgage ; but if the mortgager was not seised at the time of the sale, then the sheriff’s deed could not convey a seisin, but only a right of entry, which must be executed, before a writ of entry could be maintained in which the demandant should declare on his own seisin. Perhaps a special declaration founded upon the disseisin done to the mortgager would be good, for as the mortgager himself could have sustained a writ of entry, and the deed of the sheriff in effect conveys all his right to the purchaser, and he had a right of action without entry, by force of the statute and the sale the purchaser may have succeeded to this right. But in such case the seisin of the mortgager, and not of the purchaser, should be set out.

I do not know how this escaped me at the trial, for it certainly is a very clear point; and the demandant having declared on his own seisin, on evidence of an actual disseisin of the mortgager continuing to the time of the sale, the action was gone.

The point, though presented at the trial, had another aspect to my mind, for I thought the tenant’s counsel relied upon it to show that nothing passed by the deed of the sheriff, because there was an adverse possession at the time. I thought then, and now think, that the deed was not void on that account ; for if it be, it would follow that creditors have no means of talcing rights of redemption for satisfaction of their debts, whenever the mortgager may have been disseised. The entry of the sheriff could not purge the disseisin, for his entry is not necessary to a sale, and he need not be on the premises for the purpose. The judgment creditor could not enter, for he has no right in the land until after the levy, and the purchas er has no interest until after the sale. The mortgager could not be expected to enter for the purpose of having the land taken from him by execution. The sale and deed of the sheriff therefore, under such circumstances, must pass the right, and if there is no disseisin, it passes a seisin in fact as well as law ; if there is a disseisin, it passes a seisin in law which gives a right of entry, and after the entry an action of entry sur disseisin.

It was formerly questioned whether the sheriff’s deed of an equity passed such a legal estate in the land as would enable the purchaser to maintain trespass or writ of entry, even where the mortgager was not disseised. But that doubt was removed by the decision in the case of Wellington v. Gale, 7 Mass. R. 138. On the trial of that cause the judge at nisi prim ruled that the demandant, who was a purchaser of the equity, could not sustain his action, for want of an actual entry under the deed. This decision was overruled, and it was held that the sheriff’s deed conveyed an actual seisin when neither the mortgagee nor his heir had entered under the mortgage, and that the purchaser might maintain an action against any stranger, unless he had in fact disseised the mortgager before the sale of the equity. This qualification of the right, though not affirmatively stated, is undoubtedly sound in principle, because if the mortgager is disseised, there is no seisin to convey by the sheriff’s deed. This doctrine was supposed by the demandant’s counsel to be shaken by the case of Porter v. Millet, 9 Mass. R. 101, but it is on the contrary maintained by that case ; the case of Wellington v. Gale being referred to in support of the point then before the Court, and the qualification necessary to be adverted to.

In a revision of the case of Wellington v. Gale, as reported in 13 Mass. R. 483, the doctrine in the original case is not called in question. This case also settles the point, that the sheriff’s sale is not void because the mortgager may have been disseised, though a legal seisin may not have been conveyed. In short there is no discrepancy in the cases upon the subject, and the proposition contained in a negative form in the first case of Wellington v. Gale, that any entry of the purchaser under a sale of the equity is necessary when he declares upon his own seisin, is undoubtedly good law.

It is unnecessary to decide the other points raised in the case, as this is decisive against the action in its present form. It may be as well to observe, however, that a disseisin by the tenant at the time of the sale is clearly made out by the facts, he having several buildings on the premises placed there by himself, and receiving the rents and profits therefrom.

It was said that there cannot be a disseisin without notice, and that as the mortgager and mortgagee were out of the Commonwealth, they would not be disseised ; but acts of notoriety', such as building a fence round the land or erecting buildings upon it, are notice to all the world.

The tenant’s objection to the finding of the jury in regard to the possession, we think not well founded ; there is no need of a special issue on the possession, in regard to the value of the improvements. The jury did right in assigning the reason for not going into that subject.

New trial granted. 
      
       See Revised Stat. c. 73, $ 38; 1 Powell on Mortg. (Rand's ed.) 156, note
     
      
       See Alden v. Gilmore, 13 Maine (1 Shepley) R. 178; Stearns on Real Ac tians, 43, 44; Little v. Libby, 2 Greenl. 242; Robinson v. Swett, 3 Green] 316; Kinsell v. Daggett, 2 Fairfield, 314.
     
      
       See Poignard v. Smith, 8 Pick. 272.
     