
    Squires Shove versus Josiah Dow.
    When two men have each apparently perfect title to the same piece of land, by which either might hold the whole, but for ah equally good title in the other, they take each a moiety. Thus, where two creditors caused the same land of their debtor to be attached by two officers ; one of whom returned, that he attached the land one minute after a certain hour; and the other, that he attached it immediately after the same hour, and the creditors caused their several executions to be duly levied thereon within thirty days after judgment; it was holden, that the officers severally intended, in their returns, the same instant of time, and that the creditors took each a moiety of the land so attached and levied upon.
    This was a writ of entry, in which the. demandant counted on his own seizin of an undivided moiety of certain land situate in Lynn, and alleged a disseizin by the tenant; who pleaded nontenure with general disclaimer, as to one undivided fourteenth part of the demanded premises ; and, as to the residue, he pleaded the general issue.
    On the trial, which was had before Jackson, J., at the sittings here after November term, 1814, it appeared that one Thomas Witt was formerly seized of the moiety in question ; and both of the parties in this suit claimed under different executions, levied on the premises as the property of the said Witt.
    
    * The demandant, on the 8th of June, 1813, commenced an action against the said Witt, for the recovery of a debt due to him, and therein caused the premises to be attached. The deputy sheriff, who served the writ in that action, returned, that, on the said Sth day of June, at one minute past 12 o’clock, A. M., he attached all the said Witt's right, title, and estate, in the said premises, and also at the same time made a like attachment on sundry other pieces of land in different places in the same town. The said Shove recovered judgment in that suit at the term of this Court, holden in November, 1813, and within thirty days after said judgment, namely, on the 13th of December following, the execution, issued thereon, was duly levied on said moiety.
    The tenant, Dow, on the same 8th of June, commenced an action against said Witt, for the recovery of a debt due to him, and therein caused the same premises to be attached. This writ was delivered to another deputy sheriff, who returned thereon, that, on the same 8th of June, immediately after midnight following the 7th of said June, he attached all the said Witt's right, title, and estate, in the premises, and also, that he, at the same time, attached sundry other pieces of land in different places in the same town. The said Dow recovered judgment in his said suit, at the Circuit Court of Common Pleas, on the 25th of December, 1813. The execution, issued thereon, was duly levied on the thirteen undivided fourteenth parts of the said Witt's moiety before mentioned.
    It appeared by the return of this last execution, that appraisers were duly appointed and sworn on the 10th of January, 1814 ; and that they made their appraisement on the 22d of said January. The officer’s return was written directly under the certificate of the appraisement, and refers to that appraisement for the description of the land on which the execution was levied. But this return is dated on the said 10th of January, and therein the officer says, that on that day he levied the execution, and delivered seizin of the land to the creditor ; and the receipt * signed by the creditor also bears date on the same tenth day of January.
    A verdict was taken for the demandant by consent, subject to the opinion of the Court on the report of the judge, as above recited ; and, if the Court should be of opinion that the demandant was entitled to recover any smaller proportion of the demanded premises, the verdict was to be altered accordingly ; and if they should be of opinion that he was not entitled to recover any part thereof, the verdict was to be set aside, and a verdict entered for the tenant.
    In the course of the trial, the counsel for the tenant suggested, that there was a mistake in the officer’s return of his execution above mentioned ; and moved that the officer might be permitted to amend it, before it was used in evidence. The officer, being examined, testified, that, after the execution was delivered to him, he went,- on two different days, to the premises in question. On the first day, the creditor’s attorney or agent had not determined on which of the sev eral pieces of land attached he would have the execution levied. There were sundry other executions then in the officer’s hands against the said Witt, three of which were levied by him on the 10th day of said January. On the second day, when he went with this execution, the abovementioned appraisement was made ; and he had no doubt that he completed the levy, and delivered seizin to the creditor, on that day. He testified, that he was confident that he was there on this business only twice. He supposed that he wrote his return some weeks after the transaction, and that in dating it he was misled by the date of the certificate of the appraiser’s oath, which was written on the top of the sheet, and accordingly dated his return on the 10th, instead of the 22d, of January. It had always happened in former levies made by him, that the certificate of the appraiser’s oath, the appraisement, and the levy, were all on the same day.
    * If the Court should be of opinion, that the return of [*532] the execution ought to be amended by the officer, by altering the date as above suggested, it was to be considered as if so amended before the trial.
    The cause was argued at the last November term in this county, by Prescott and Howes, for the demandant, and Merrill, for the tenant.
    
      Howes contended,
    that, the demandant having proved his seizin, the burden devolved-on the tenant, to show by what right he had entered and disseized the demandant.
    The demandant’s attachment was made in one minute after midnight, which is definite, explicit, and precise. The tenant’s was made immediately after, which is loose and indefinite, and fixes no precise point of time at which the attachment was made. In the Constitution of the United States (.Art. 1, § 3,) the Senate are to be divided into classes, immediately after they shall be assembled in consequence of the first election. So in Art. 2, § 1, when it is ascertained that more than one person have a majority of votes for President, and have an equal number of votes, then the House of Representatives shall immediately choose one, &c. But it never entered into any one’s conception, that either of these duties was to be performed or commenced within a minute of their occurrence. In Butler and Baker's case, 
       it is said by the Court, that this word, immediately,
    
    
      should not have suca a strict construction, that it ought to be done in articulo temporis; but would be satisfied if it be made in convenient time. But, if the expressions are so nearly alike that it is uncertain which of them intends the earliest period, then ffiey are both void as between these parties ; and the priority of levying the demandant’s execution will give him the preference against the posterior levy by the tenant.
    The return of the tenant’s execution is inconsistent, and, therefore, impossible to be true ; and it would be introducing a very loose practice, and opening a door to much fraud, to permit an amendment at this time.
    
      * Merrill.
    
    
      Immediately is defined by the great English lexicographer, “ instantly, at the present time, without delay, without the intervention of any other event.” Immediately ajter must then be prior to one minute after. So is the common use of the term. The return by the tenant’s officer was made with reference to the statute of 1791, c. 58, § 9, which provides that no civil process shall be served from midnight preceding to midnight following the Lord’s day. He meant that his return should be understood to be dated at the point of time when the statute would justify the service. If the word, immediately, is sometimes in common language used in a loose sense, so are numerals ; yet, in construing legal proceedings, such laxness as to these would hardly be admitted.
    In the case of Butler and Baker before referred to, it is said, immediately is as much as to say without any mean time, and is synonymous with presently. 
      
    
    This return is not to be supposed to be made on the land. There is no necessity of going upon the land in order to give validity to the' attachment of it. There is no change of possession, nor any open indication of the attachment, as in the attachment of personal chattels. 
    
    The inaccuracy of the date, in the officer’s return of the levy of the tenant’s execution, is of no importance. The return is sufficient without amending it. It shows the date to have been a mere slip, since the appraisement, to which it refers, must of necessity have been prior. The date of the certificate of appraisement may be rejected as surplusage, and then the whole will stand right. / The whole certificate may be rejected as surplusage. 
    
    
      Prescott contended,
    that an officer could not make a good attach-merit of land without actually going upon it ; if it were otherwise, an officer may sit in his office, and return attachments of lands in various and distant parts of his county. The officer here returned an attachment of ten or more parcels of land on the tenant’s writ. It was physically impossible for him to do this within one minute ; * and, as it is uncertain which of the parcels he attached first, the attachment for the demandant, being within one minute, must then have the preference, as prior in point of time.-
    But, without dwelling on the distinction between one minute, and immediately, after midnight, it is apparent that both the officers intended the same instant of time ; and it would be monstrous that a legal title to land should depend on a minute difference of phraseology, and that, probably, dictated by the attorneys of the judgment creditors.
    If the Court should think the attachments not supported, then the demandant’s prior seizin on his execution must give him the better title.
    The action stood over to this term for advisement; and now the opinion of the Court was delivered by
    
      
       3 Co. 28.
    
    
      
       See also 6 Mass. Rep. 181. — Roberts on Wills, 618 — Dyer, 342. — 5 Co. 94. — 7 Co. 73. —10 Co. 95.— l W. Black. 20.—3 Wils. 274.— Cowp. 177. — 1 Tidd's Practice, 85. — 2 B. & P. 235.
    
    
      
       5 Mass. Rep. 163, 274. — Mass. Rep. 402.
    
    
      
       7 Mass. Rep. 74. — 2 Inst 396. — Shep. Touch. 87 —Co. Lit. 303 — 9 Mass. Rep 394 — Ibid. 96. —6 Mass. Rep. 22. —11 Mass. Rep. 517. — Alleyn's Rep. 22.
    
   Jackson, J.

The obvious mistake made by the officer, in the date of his return indorsed on the tenant’s execution, cannot defeat the levy. The certificate, signed by the appraisers, is not a part of the return; excepting as it is made so by the officer, by referring to it in the part which is signed by him. The officer alone is authorized to certify what is done by force of the execution ; and, as it is apparent from his return, that he delivered seizin of the land after the appraisement, although by the dates it would appear to be done before, we must reject one of those dates. It is of no importance which is rejected ; as the appraisement and delivery of seizin would be equally good, whether made on the 10th or on the 22d of January. The levy, in either case, would relate back to the attachment.

As to the original attachments made by the demandant and the tenant, we find it impossible to say that either of them has the priority. The returns of those attachments are in the language of common men, certifying their own doings. Their meaning is to be sought, not in lexicons, nor in the technical forms of law, but in the popular * use of language. It appears to us, that each of them made the attachment, as soon as it could be done, after twelve o’clock at night ; and each intended to certify the fact accordingly.

It is not easy, perhaps, to determine, which of them adopted the most appropriate language for that purpose. But, even if a preference could be discerned, after the critical disquisition of the counsel who have argued this cause, still the question returns, how the two officers understood the words used by them respectively ; and we are satisfied, from the circumstances of the case, and the tenor of the returns, that they both had the same meaning.

These two attachments, then, are of equal force and validity ; and each party has derived therefrom a title to the land in controversy, which would decide the cause in his favor, but for the title of the other party. In this state of the case, it appears to us, that they must hold in moieties. There is, in Co. Lit. 21, a case in some degree analogous, in which two simultaneous conveyances of the same piece of land are held to operate each on an undivided moiety of the land. There have also been many cases of land devised twice in the same will, to different persons ; some of which cases are collected in a note to the page last cited, and in a note to page 112, in the same book ; and also in a note to Plowd. Comm. 541. In these cases the question was, whether the last devise should revoke the former; or whether both the devisees should take. The former opinion was maintained by Lord Coke ; but it was always taken for granted, that, if this opinion was incorrect, and if the first devise was not revoked, both of the devisees, having an equal title to the whole land, should take in moieties ; and this latter seems to be the settled rule. The principle established or recognized in these cases, and which is obviously founded in justice and common sense, is equally applicable to the case at bar. It is, that, when two men have each a title to the same piece of land, which is apparently perfect, and by which either * might hold the whole, but for an equally good title in the other, they must take each a moiety.

Our statute, directing how joint-tenancies shall be created, would prevent any doubt upon the question, which has sometimes arisen in English cases, whether the parties should take jointly or in common. From the nature of the case, it can never be “ clearly and manifestly the intention of the parties,” that the lands should vest and be held as joint estates, and not as estates in common ; and, where that intention is not so expressed, they will take as tenants in common.

The verdict must be altered according to the agreement of the parties, so as to leave to the tenant, Dow, one half of the thirteen fourteenths, which were taken on his execution ; after which, the demandant, Shove, will hold fifteen fifty-sixth parts of the whole land, Dow will hold thirteen fifty-sixth parts, and the original co-tenant with Witt will hold the remaining twenty-eight fifty-sixth parts, or a moiety of the whole ; and they will be tenants in common in these proportions. 
      
      
        Stat. 1785, c. 62.
     