
    * Jeduthun Wellington versus Alpheus Gale.
    A mere disseizor, in possession of land when a right in equity to redeem the same is seized and sold upon execution, may avail himself of any insufficiency of the .officer’s return, in an action by the purchaser of the equity against suck disseizor.
    This was a writ of entry sur disseizin, wherein the demandant counted upon his own seizin within five years, and upon a disseizin by the tenant.
    At the trial, which was had upon the general issue by review before Putnam, J., at the sittings here after November term, 1814, the demandant, to prove his seizin, produced a judgment in his favor against one Amos Brown, jun., recovered at the Circuit Court of Common Pleas for this county, March term, 1804, for $ 348.29 ; and the execution which issued thereon, March 27th ; also the return of Peter Edes, then a deputy sheriff, of a levy of the same execution upon the right in equity of the said Brown to redeem the demanded premises.
    The tenant called upon the demandant to produce also the original writ, and the promissory notes in his suit against Brown; and he stated, that the said judgment had been obtained in consequence of a fraudulent alteration of one of the said notes ; and also that the judgment was recovered for a larger sum than was due upon said notes. The demandant objected ; but was required to produce, and he did produce, the said original writ and notes.
    The writ was tested the 21st of March, 1803, and the attachment was made on the 22d of the same month. The declaration was upon two promissory notes ; the first, dated the 29th of March, 1802, for $ 300.00, payable to said Wellington, on demand with .nterest, on which was indorsed $ 145.00 on the 1st of April, 1802 The date of this note, as to the month and day of the month, was evidently written upon an erasure. The second note was dated the 1st of April, 1802, for $ 300.00, payable by instalments of $ 150.00 in one year.
    The return of the officer upon the execution stated, that, on the 20th of April, which was admitted to be within thirty days from the rendition of the judgment, he took the right in equilj of which Brown \v as seized, and, “after * giving public notice of the time and place of sale agreeably to law ii such cases made and provided,” that he proceeded to sell at auction to the said Wellington.
    
    The tenant objected to this return, that it did not prove that the officer gave notice to the debtor, nor that he posted notifications of the time and place of sale, according to the statute.  The return was admitted. The demandant offered to prove, by parol testimony, that notifications were posted in one town, and that the debtor was actually and seasonably notified and present at the sale ; it being admitted, that the officer died before the review. The tenant objected to this evidence, and it was rejected.
    The demandant then offered the deed from Peter Edes, the deputy sheriff', dated the 31st of May, 1804, purporting to convey the said right in equity to the said Wellington. The tenant objected to ' its admission, because the proceedings of the officer, as before stated, did not appear to have been conformable to law. The deed was admitted.
    The demandant then offered a mortgage from Joel Harrington to Elijah Lawrence, dated the 24th of October, 1798, and acknowledged and recorded the same day, for £24 and interest. Also an assignment of the same, and of the bond, to secure the payment of which the mortgage was given, from Thomas Stearns, executor of the last will of the said Lawrence, the mortgagee, to the demandant, dated the 2d of November, 1809, and acknowledged and recorded the same day. To this the tenant objected, because it was procured by the demandant after the purchase of the writ in this suit ; and also, because executors, in such cases, have no authority, by law, to assign mortgages. The mortgage and assignment were admitted.
    The demandant also produced a release from the said Brow7i to him, dated the 1st of April, 1805, not acknowledged, but recorded the 8th of December, 1812, releasing bis right of redemption of the demanded premises, and also all errors in the rendition of the first judgment aforesaid. * This release was proved to have been executed about the time it bore date.
    The demandant then offered parol testimony, that he entered and took actual possession of the premises, after the sale of the equity of redemption by the officer as aforesaid. It was admitted, that Harrington, the mortgagor, was originally seized, and that from him the title passed to the said Brown.
    
    The tenant proved, by parol testimony, that he had been in the possession of the premises thirteen or fourteen years, claiming the same in fee ; but he produced no other evidence of title.
    The judge, intending to res'erve the questions of law arising in the case, for the consideration of the whole Court, charged the jury, that, T they were satisfied from the evidence that the demandant had obtained his judgment against Brown by fraud, they should find their verdict for the tenant. But that, if they believed from the evidence that the said judgment was obtained fairly and without fraud, it was not competent for the tenant to impeach it on the ground of an unintentional mistake or error in the calculation of the amount; and, in such case, the evidence aforesaid of the demandant ought to be considered as sufficient to maintain the issue on his part.
    The jury found a verdict for the demandant; and, if the Court should be of opinion, that the evidence produced by him was, in law, insufficient to maintain the issue on his part, the verdict was to be set aside, and the demandant to become nonsuit; otherwise, judgment was to be rendered on the verdict.
    The cause was argued, at the last October term, in this county, by Ward and Fay, for the demandant, and by Bigelow, for the tenant.
    
      Bigelow contended,
    that the tenant was not bound by the judgment obtained by the demandant against Brown, and it was not competent to produce it, since it contained in itself such proof of gross negligence on the part of * Brown, as could admit of no explanation but collusion and fraud. One of the notes, on which the action was brought, was not due when the suit was commenced. Yet no defence was made, but judgment suffered by default. The demandant must recover on the validity of his own title, and the tenant had a right to rest his defence on the weakness of that title, without producing the documents of his own.
    The return of the officer of the service of the execution is wholly insufficient. It ought to have shown not only that he had conformed to law in the sale, but in what manner he had done so. 
    
    The judge’s direction to the jury was too limited in its terms. Fraud is a hard and an odious word. Had it been put to the jury to say whether there was collusion or connivance between those parties in that transaction, their verdict might have been different, and the evidence would well have maintained it. 
    
    
      For the demandant,
    it was insisted, that there was no evidence of fraud or collusion in obtaining the judgment against Brown. If there were, it was not for the tenant to call it in question in this suit ; nor can he avail himsell of any insufficiency in the sheriff’s return. He stands in court as a mere disseizor, having no pretence of a legal claim to the land demanded. If Brown was not duly notified, he was present at the sale, and this was equivalent to notice. But our title is from the officer’s deed, and by that it appears, that all thf •requirements of the law were scrupulously fulfilled. 
    
    
      
      
        Stat 1798, c. 77.
    
    
      
      
        Lancaster vs. Pope & al., 1 Mass. Sep. 87.
    
    
      
      
        7 Mass. Rep. 138.
    
    
      
      
        Bac. Abr. Exon. Q. — 2 Caines' Rep. 63, 66.—2 Johns. Rep. 259. — 8 Johns Rep. 550, 551. — Cro. Jac. 246.
    
   The opinion of the Court was delivered at this term by

Parker, C. J.

The title of the demandant to the premises m question seems to be sufficient to maintain his suit ; unless the tenant has shown a right to retain the possession under a better title, or unless he can show some fatal defect in that of the demandant which will take away his right of entry.

* The original title to the demanded premises was in Joel Harrington, who was seized of the land in 1793, in which year he conveyed the same in mortgage to Elijah Lawrence. This mortgage, and the bond taken .as collateral security, were assigned by the executor of Lawrence to the demandant; who has thus acquired a right to the possession of the land, as assignee of the mortgage. But, as this title was acquired after the purchase of the writ, he cannot avail himself of it in this suit ; for the title in issue has reference to the commencement of the action.

It is admitted in the case, that Brown had lawfully acquired all the right remaining in Harrington after his mortgage to Lawrence ; so that Brown was seized of the right in equity to redeem the same , and the demandant showed a judgment recovered against Brown in 1804, and a levy of the execution which issued upon the judgment, upon the right in equity to redeem, within thirty days after the judgment rendered ; and a deed from the officer who made the levy to the demandant.

These proceedings, if regular, would, according to the statute, vest all the right and interest, which Brown had in the premises, in the demandant, and entitle him to the possession against all but the mortgagee and his lawful assigns.

But the legality of the proceedings has been questioned on several grounds ; and it is necessary to determine the validity of the objections.

The tenant appears in the suit altogether as a stranger to the title of Harrington or Brown; but claims to defend merely on account of a possession which has continued thirteen years, claiming, as he alleges, a fee. He was originally, then, a disseizor of some one ; and it is only on the ground of disseizin that he claims a fee in the premises. It must be presumed that he disseized either the mortgagor or the mortgagee. But this act would have no effect upon the right to redeem, which has been traced down in the manner aforesaid to the demandant. His * possession, therefore, although adverse, would not prevent the operation of the deed from the officer to the demandant. For the thing sold being an incorporeal hereditament, the sale was not subject to be defeated by any unlawful possession of the land itself.

The tenant’s first objection is to the judgment recovered by the demandant against Brown, alleging it was suffered by fraud. But in this question we think he has no interest, not being a creditor of Brown, or otherwise having a right to question a judgment against him. And this question of fraud in obtaining the judgment was also left plainly and distinctly to the jury, who must be considered to have definitively settled it in favor of the demandant. As to the errors supposed to exist in the record, the release executed by Brown, on the 1st of April, 1805, of all errors in the rendition of the judgment, is conclusive upon this point. For, should that release be inoperative as to the title of the land, for want of being acknowledged, it would still be good as a release of errors, which needs not be acknowledged or recorded.

An exception is also taken to the levy and sale by the officer, because it did not appear, by the return, in what manner notice was given of the intended sale, nor that he gave notice to the judgment debtor of the time and place of sale, as required by the statute which provides for the selling of rights in equity; the return of the officer being general, namely, that he proceeded to sell, “ after giving public notice of the time and place of sale, agreeably to law in such cases made and provided.” This return is undoubtedly defective ; nor do we think it could be cured by proof of the necessary facts ; because every thing essential to a title under the statute ought to appear of record. And we have no doubt that Brown, the execution debtor, or any person regularly claiming under him, might avoid the levy for this cause. Whether it could be amended by the officer, under the direction of the Court, were the officer now living and ready to certify the essential facts * omitted in the return, we are not prepared to say ; but we are satisfied that no parol evidence could be properly admitted in lieu of the return of the officer.

The question, however, in this case is, whether by these proceedings, and the deed of the officer, which was subsequently made, and the entry upon the land, which was made by the demandant after the delivery of that deed, he had not acquired a seizin, which will enable him to maintain this possessory action against a mere stranger, so that he might have to contend only with Brown, or his lawful assigns, as to the validity of his title.

Upon this point we have entertained considerable doubts ; but we are now satisfied that the tenant has a lawful right to insist upon proof, that all the measures, made necessary by the law to vest the right of Brown in the demandant, have been adopted and pursued. The title of the demandant is wholly under the statute, and he must show a compliance with all the substantial requisites of that statute, or he has no right to disturb the tenant in bis possession.

In all cases the demandant in a real action must show a title sufficient to give him the right of possession ; in other words, he must show an actual seizin according to his count. The demandant in the case before us can show no seizin, unless the steps made necessary by the statute, to divest the right of Brown, have been taken. Notice of the sale, in the manner prescribed by the statute, and particular notice to the debtor of the time and place of sale, are essential to the sale by the officer. These preliminary facts must be proved by the return of the officer upon the execution. They do not appear in this case, unless the general return, that he had given notice according to law, should be received as evidence. But it has often been determined that the officer must return specially the manner in which he has executed his precept, in order that the facts may become matter of record, for the benefit of him whose property is taken from him by virtue of legal process founded on * statute ; and also that the Court may judge whether the duty has been properly executed, instead of its being left to the officer to determine this matter for himself.

The case of Davis vs. Maynard settles this point decisively, and, indeed, that case is, in all respects, like the case at bar. And the cases of Eddy vs. Knapp, and Purrington vs. Boring, recognize and involve the same principle. The demandant, therefore, acquired no seizin by virtue of the levy and sale ; and the tenant, who was in possession before those proceedings commenced, has a right to maintain that possession.

Demandant nonsuit. 
      
       9 Mass. Rep. 242.
     
      
       2 Mass. Rep. 154.
     
      
       7 Mass. Rep. 388.
     