
    Robert Mitchel, per Prochein Ami, versus Enoch Lunt.
    A creditor of an intestate, having recovered judgment against an executor de son tort, cannot levy his execution issued upon such judgment upon the lands of which the intestate died seised.
    This was a writ of entry sur disseisin, “ wherein the said Robert, an infant, who sues this action by W. B., his next friend, demands against the said Enoch a certain tenement and land described, with the appurtenances; whereupon the said Robert, by his said next friend, complains, and says that Robert Mitchel, father to the demand-ant, was seised of the demanded premises within thirty years last past, in his demesne as of fee and right, taking the profits thereof to the value of one hundred dollars by the year, and that the said Enoch, within the time aforesaid, and in the lifetime of the said Robert the father, unjustly, and without judgment of law, disseised him of the tenement aforesaid, with the appurtenances thereof; and that the right to the same afterwards descended from him to the demandant, his son and heir; and the said Enoch still deforceth the said Robert, the son, of the tenement aforesaid. To the damage,” <fcc.
    [ * 655 ] * The cause was tried upon the general issue pleaded and joined before Sewall, J., at the last April term at Ipswich, and a verdict found for the tenant, viz., that he never disseised Robert Mitchel, father of the demandant, as set forth in the declaration.
    The verdict was taken by consent, subject to the opinion of the Court upon the following facts : —
    “ That Joshua Mitchel, the grandfather of the demandant, in the year 1780, died seised of the tenements demanded in fee simple; that on his death the same descended to Robert Mitchel aforesaid, his son, who thereupon entered and was seised thereof, as the law requires; that afterwards, at a Court of Common Pleas holden in September, 1784, the tenant recovered judgment against Elizabeth Mitchel, widow of the said Joshua, the grandfather, as executrix of his last will, for the sum of 27l. Os. 10d. damages, and 31. 3s. 6d. costs of suit; that afterwards, on the 30th day of May, 1785, execution on the said judgment issued against the goods, chattels, and lands, of the said Joshua, the grandfather, in the hands of the said Elizabeth, and on the 6th day of July, 1785, was levied in due form of law on the demanded tenements, and seisin thereof given to the tenant, which execution was duly returned and registered ; that the tenant has continued seised ever since the levy of the said execution ; that the said Robert continued seised until the said levy ; that he has since, within twenty years, died, leaving the demandant his son and heir; that the said Joshua, the grandfather, died intestate, no administration on his estate having been granted ; and that the judgment aforesaid, recovered against the said Elizabeth, his widow, was legally recovered against her, as she was executrix in her own wrong of the will of her said husband.”
    If, upon these facts, the Court should be of opinion that the verdict is right, then it was agreed that judgment should be rendered accordingly; otherwise the verdict was to be set aside, and a verdict entered, that the said Enoch did disseise the said Robert in manner and form as the demandant has declared, and upon such verdict, so entered, judgment be rendered for the demandant.
    [ * 656 ] * And now, at this term, the Court inclining first to hear the counsel for the tenant, Putnam observed that it was very clear that the personal estate of an intestate may be taken and sold upon an execution against his executor de son tort; and he contended that by our statute’s making the lands of persons deceased liable for the payment of their debts, the real estate was placed on the same footing with the personal estate in this respect. At common law, the lands of one deceased cannot be taken on execution against a rightful executor or administrator ; but by our statute of 1783, c. 32, § 7, the real estate of any testator or intestate is made liable to be levied upon by any execution issuing upon judgments against executors or administrators, being the proper debts of the testator or intestate, in the same manner as by law is provided respecting other real estates levied upon, and may be redeemed by the executor, administrator, or heir, in like time and manner. And no reason appears why lands may not be taken upon an execution against an executor de son tort, as well as chattels.
    
      Putnam.
    
    Fraud would vitiate any transaction; but it is never to be presumed. In this case, every thing must be supposed to be fair and proper. The judgment on which the execution issued was regularly obtained, and it must be taken for granted that it was for a just debt due from the intestate. The provision of the statute that the heirs may redeem the estate taken, is a sufficient protection for them.
    But the same objection would apply to chattels as strongly as to lands. As much fraud may be practised, and as much injury com milled, in one case as in the other ; for any one might, by intermeddling with the estate of an intestate, consisting wholly of chattels, defraud those entitled to distribution of the whole of it. But this is in no case to be presumed.
    
      Prescott for the demandant.
    Though an executor de son tort, if he have paid the just debts of the intestate, will be allowed, by way of offset, in an action against him by the rightful executor or administrator, so much as the latter would * have been [ * 657 ] obliged to pay, yet he cannot convey the personal chattels of the intestate, so that the purchaser shall hold them against the rightful executor or administrator. If this were not the case, an insolvent man, by possessing himself of the goods of one deceased, might dispose of them, and the creditors would be deprived of the remedy for the recovery of their demands.
    But we contend that an executor de son tort has no connection at all with the real estate of the intestate. This descends to the heir on the death of the ancestor; and even a rightful administrator has no right to enter upon it, except on having obtained a license to sell it for the payment of the debts of the deceased. An executor de son. tort could certainly never obtain such license.
    
      
       2 Mass. Laws, App 982.
    
    
      
      
        Ibid. 1013.
    
   Sedgwick, J.

To subject lands to be taken in such case would open a great door for fraud. Whenever a person saw fit to inter-meddle with the estate of an intestate, he might cause the heirs at law to be stripped of their inheritance.

The provision of the statute of 1783, c. 32, authorizing the extent of executions against executors and administrators upon the lands of a deceased testator or intestate, has been cited, and it has been argued that this provision may extend to the case of executors de son tort. Although the real estate of deceased debtors was made liable for the payment of their debts as early as the year 1696, it was not until the year 1759, that creditors were authorized to levy their executions on it. During that period, then, it must be agreed a creditor could not avail himselt of such real estate in satisfaction of an execution he had obtained against an executor de son tort. And the statutes of 1759 and 1783 must, according to all rules of interpretation, be understood as intending judgments against rightful executors and administrators. The same executors and administrators are authorized by the .statute last mentioned to sell the real estate of the deceased when n shall be necessary for the payment of debts, &c., on obtaining license from the proper court; but it was never heard that an executor de son tort obtained such license. So neither will a judgment agwist him authorize the extent of an execution on such real estate.

The opinion of the Court was de'xvered by

* Parsons, C. J.

The demandant in a writ of entry sur disseisin, counts on the seisin of hts father of the tenements demanded within thirty years, of a disseisin done to him by the tenant. The cause was tried on the general issue, and a verdict was found for the tenant by the consent of the parties subject to the opinion of the Court upon a case reserved.

Without detailing all the facts agreed, it is sufficient to observe that the merits of the cause depend on the question whether $t judgment, recovered by a creditor of an intestate against an executor de son tort, can be satisfied by levying an execution issued oc that judgment upon the lands which were the intestate’s, but have descended, and of which the heir is in possession.

By our laws, the lands of the debtor are made liable for the payment of debts, and may be taken on execution, either in the hands of the debtor, or after his decease in the hands of his executor or administrator. But after the debtor’s decease, the lands are made liable in aid of the personal estate, which must first be applied to the payment of the debts as far as it is sufficient. And when deficient, the executor or administrator may obtain license for the sale of enough to make up the deficiency. Or, if they are not sold on a license duly obtained, the creditor may take them by execution in satisfaction of his judgment. And if, by the fault of the executor or administrator, in not collecting the personal estate, or in not applying it to pay the debts, the lands are taken from a devisee or heir, the executor or administrator is liable, in an action for waste, to the devisee or heir, who is injured by the waste.

An executor de son tort has no legal control over the personal estate; he has no authority to collect the effects of the deceased. His intermeddling is an unlawful act, by which he is liable to a creditor so far as he has intermeddled ; or if, when sued, he falsely deny that he is executor, he is made chargeable by his false plea for the debt out of his own estate, if he has not personal estate of the deceased sufficient to pay it. But no action lies against him for waste by subjecting the real estate to be taken in execution, for *not paying the debts of the deceased. And [ *659 ] no intermeddling with the lands of the deceased will charge him as executor, but such intermeddling is a wrong done to the heir or devisee.

From this short view of the character, authority, and liability, of an executor de son tort, and of our laws making lands liable for the payment of debts, we are satisfied that the lands of one deceased are not liable to be taken to satisfy a judgment recovered against an executor de son tort; that, having no character by which he can obtain license to sell lands for the payment of debts, the lands cannot, in legal construction, be estate of the deceased in his hands; and that to admit the lands to be taken to satisfy a judgment recovered against him would be extremely mischievous, as no action for waste in not collecting the personal estate, and paying the debts, will lie against him for a devisee or heir, who may consequently be unjustly deprived of their lands without an adequate remedy.

The levy, in the case before us, by the tenant on the lands of the demandant’s father, who was lawfully seised of them, was an entry unjustly, and without judgment of law, and amounted to the disseisin complained of. Pursuant to the agreement of the parties, the verdict must be set aside, and a general verdict for the demandant be entered, and judgment be rendered upon it for him to recover his seisin with costs.

It may be proper to remark that, in cases like the present, where a creditor would avail himself of the lands of an intestate for the payment of his debts, if the next of kin refuse administration, as a creditor he is entitled to it, and in this character, on a deficiency of personal assets, he may have a license to sell land enough to pay his own debt.  