
    * Elizabeth Procter versus Joseph Newhall.
    A creditor of one of several co-heirs attached the purparty of such co-heir immediately upon the death of the ancestor, and, within thirty days from the rendition of judgment, extended his execution; and his title was held good against a co-heir, to whom the debtor’s purparty had been regularly assigned by due proceedings in the Probate Court.
    This was a writ of entry sur disseisin, and was submitted to the decision of the Court upon the following facts, stated and agreed by the parties.
    
      Susanna Hathorne, of Salem, on the 30th of May, 1818, died intestate, and seised of sundry parcels of land, and left the demandant, together with one Joseph Hathorne, and eight other persons, her heirs at law, entitled to her estate in equal proportions, viz., in tenths.
    The tenant, Newhall, was a creditor of said Joseph Hathorne at the time of the decease of the intestate, and on the same 30th of May, immediately after the intestate’s death, he, as did also several other creditors of the said Joseph, attached the said Joseph’s undivided share of the intestate’s real estate, entered his action, and at the following December term of the Court of Common Pleas, lecovered judgment in his said action. On the 19th of January, 1819, within thirty days from the rendition of the judgment, he caused his execution, issued thereon, to be duly levied on the said Joseph’s undivided tenth part of each parcel of the intestate’s real estate.
    On the 7th of July, 1818, administration of the estate of the intestate was duly committed to J. Pickering, Esq., and it has since been ascertained by him, that the said Joseph was lawfully indebted by judgment to the intestate, in a sum exceeding the value of his distributive share of the estate attached as aforesaid.
    Upon application of the heirs at law of the intestate to the judge of probate, the real estate aforesaid was afterwards divided, by commissioners duly appointed, into six shares, it not being divisible into a greater number of shares without prejudice to the whole estate; and one of those shares, being the demanded premises, was assigned to the demandant by the judge of probate, and the remaining shares were assigned to such others of the heirs as the same [ * 82 ] would conveniently accommodate, with the assent * of all the heirs, including the said Joseph, to whom, instead of a share of the real estate, a sum of money, equal in value to a share, was awarded to be paid him by the heirs, to whom the said six shares were assigned. The said Joseph was the oldest male heir of the intestate, and was of age at the time of the said division and assignment; several of the other heirs were minors, and were represented in the Probate Court by their guardian.
    Neither Newhall, the tenant,
    nor any other of the said attaching creditors, had any notice of the division or partition of the estate; but the heirs at law knew of the attachments, before their application for a division of the estate; notice thereof having been filed in the Probate Court, from which the warrant issued.
    The estate of the intestate was not fully settled, on account of the pendency of the present suit; and in consequence thereof, no credit or allowance had been made to the said Joseph, on the intestate’s said demand against him, for the value of his distributive share of the real estate assigned to others as aforesaid; nor has any payment or satisfaction been made to him, by those to whom it was assigned.
    The intestate left personal property more than sufficient to pay all her debts, funeral charges, and the charges of administration upon her estate, exclusive of the demand upon the said Joseph.
    
    If, upon these facts, the Court should be of opinion that the demandant ought to recover the demanded premises, judgment was to be rendered in her favor for one tenth part of the premises described in her count, with costs; otherwise she was to become non suit, and the tenant recover his costs.
    
      
      Saltonstall, for the demandant.
    By the 24th section of the n Act to regulate the jurisdiction and proceedings of the courts of probate ” , it is provided, that “ no conveyance, made by any heir or devisee, of his or her interest or estate in the lands of any testator * or intestate, shall take from the [ * 83 ] judge of probate his jurisdiction and authority to divide and assign the real estate of any testator or intestate among his or her heirs or devisees,” in the manner prescribed in a previous part of the same section, according to which the estate of the intestate in the present case was divided and assigned. We contend that the attachment made by the tenant cannot take away the jurisdiction given to the judge of probate by this section of the statute. The passing of lands by attachment and levy are a statute conveyance, and so within the very words of this statute. Estates descending or devised, are made subject to this division and assignment, and the title may be considered as in abeyance, or in the custody of the law, from the death of the testator or intestate, until thus divided and assigned. The extent of an execution upon lands of the debtor gives the judgment creditor the same rights and interest in the lands, which the judgment debtor had in them, and no more. But Joseph Hathorne held his whole interest in the lands of the intestate, subject to the authority of the judge of probate to assign it to another heir, and award him an equivalent in money.
    But in this case Joseph Hathorne, being indebted to the intestate in a greater amount than the whole share of the estate, both real and personal, that fell to his share, could never claim any part of the estate as heir. His share had been advanced to him. In the case of personal estate, this position would not be questioned ; and since by our laws, real and personal estate are inherited and divided by the same rules, and equally within the jurisdiction of the judge of probate, the same law must apply to both. In truth, after the division and assignment made in the Probate Court, the share of the real estate of the intestate was, by a due and binding proceeding in the Probate Court, converted into money; and thereby the whole effect of the tenant’s attachment was avoided .
    * These are equitable proceedings of the Court of Pro- [ * 84 ] bate, which acts in regard to them, as a court of equity.
    Suppose one of two or more heirs or devisees to be indebted to his ancestor or testator more than the value of the estate descending or devised to him; will it be contended that he shall take his purparty, and the estate lose its demand upon him? Many other eases might be put, wherein palpable injustice would follow, if heirs and devisees can take their shares, independent of the equitable jurisdiction of the Court of Probate.
    
      Eames, for the tenant.
    On the death of Susanna H.. one undivided tenth part of her real estate descended to Joseph H., and the title to that part became immediately vested in him, as one of her heirs at law. This title, thus vested in J. H., could not be devested, but by his own act, or by operation of law. When the tenant’s attachment was made, no act had been done by J. H. by which his title was devested; nor had any operation of law produced that effect. The title being thus clear in J. H., the tenant, by his attachment, acquired a lien upon that part of the estate, and this lien could not be lost or destroyed, but by the tenant’s act or loches, or by operation of law. No act has been done by him, by which his lien has been lost; nor has any thing been omitted by him, which was necessary to preserve it. On the contrary, the case finds that he has regularly pursued his process, until the title to the estate attached is formally complete ; and the only remaining question is, whether the legal effect of what the tenant has done for his security nos been defeated by any operation of law.
    The partition made under the authority of the judge of probate, rs the only fact which the case finds, that could possibly affect the tenant’s title; and this, we contend, is not sufficient to defeat it. If it can have that effect, it must be, because it is an operation of law paramount to the statute regulating attachments, and superseding all that the tenant has done under that statute;— [ * 85 ] or, because the * statute under which the partition was made, repeals the statute of attachments.
    As to the first of these grounds, we contend that no operation of law can defeat an attachment of a debtor’s property; unless it be simply and purely an operation of law, and such a one as grows out of the provisions of the law itself, and such as the law has, of its own inherent force ; nor unless it has effect independently of the will, and without any act or agency of the party whose estate is attached ; nor unless it shows, either that the debtor had no title to the property attached, or that the title which he apparently had, when the attachment was made, is gratuitously, and without an} equivalent or compensation to him, superseded and set aside.
    Let the partition found in this case be examined by these princi pies. Is it, in the first place, simply and purely an operation of the law under which it was made ; and does it grow out of the provisions and enactments of that law ?
    There is certainly no express enactment in any part of this statute, which makes partition under it an indispensable requisite in the settlement of estates; nor is it made essentially requisite for the attainment of any important or valuable object, not attainable in any other way. It is not necessary to the validity of the title of the heirs at law; for another statute gives them the estate upon the death of the ancestor, and they are as much the owners of it before partition as afterward. It creates no title, where there was none before, nor does it enlarge the estate already in the heirs; and whatever may be the benefits derived from it, it is not necessarily to be made under this statute. The heirs are tenants in common, and may effect a legal partition in various other ways, independently of this statute, which merely provides, in substance, that when there is any real estate to be divided, the judge of probate shall cause it to be divided, &c. The meaning of which is, that partition is to be made when the circumstances * of [ * 86 ] the estate require it, and those interested make application for that purpose. The whole context shows that the word shall is used here, as well as in the former statute of 1783, c. 36, <§> 4, as enabling, and not imperative. Another construction would make it necessary to divide every estate, without exception. But that this is not required nor contemplated by the statute, and that cases may occur, in which it would not be practicable, fully appears upon another ground. Suppose an estate, which, like that under consideration, cannot be divided into as many parts as there are heirs, without destroying its value; and yet no one of the heirs will consent to accept any more than his legal proportion. The judge of probate has no power to compel any of them to purchase the share of his co-tenant. All that the judge can do, according to the statute, is to offer it to each of them successively, but neither of them is obliged to accept it. In such case, without doubt, the land must remain in common and undivided; but the intention of the legislature, if it were such as is contended for the demandant, would certainly be defeated ; the partition could not be made.
    Neither was the partition effected independently of the will, nor without the procurement and agency of the heirs at law. It was made upon their application, and J. H. was one of them. It is never made by the Probate Court, but upon the application of the heirs or devisees. It is substantially, and to every legal intent and purpose, the act of the heirs at law; and so far as J. H.’s part of the estate in this case is concerned, it is his act. But as he was the debtor, and his part of the estate was attached, his act cannot, in law or justice, avail to defeat the lien which his creditor had acquired upon his part of the estate, by attaching it.
    Further, if this partition is justly to be considered as the act of J. H., it is insufficient to defeat the tenant’s title on another ground. That title accrued at the time of the attachment, although [ * 87 ] not consummated until the extent of * the execution. At that time J. H.’s title was complete and unencumbered. The descent was cast, and no act of his, nor any operation of law, had devested his title, either actually or colorably. In fact, the partition directly admits and affirms that title. He joins as an owner, in the application ; he is regarded as an owner throughout the process ; his rights, as such, are protected by it, and his title to a proportion of the land divided is formally extinguished by the award of an equivalent in money.
    This process of partition is, in effect, a statutory conveyance of J. H.’s purparty to the other heirs, and the sum awarded him is the consideration paid, or to be paid. But this mode of conveyance, depending upon his own act, cannot give to the grantee any better title to the land than J. H. could have given by his own deed ; in which latter case the grantee must have taken the estate subject to the attachment previously made by the tenant. The process, under which the tenant claims, may also be considered as a statutory conveyance; and thus both the parties claim the estate under similar titles derived from the same person. But as the tenant’s process of conveyance was first commenced, he evidently has the elder and better title.
    Does the statute, under which the demandant claims, repeal the statute regulating attachments, from which the tenant derives his title ?
    If a latter statute repeal a former one, it must be done, either by using express words of repeal, or by necessary implication; or, in the language of Blackstone, the repeal is effected “ only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant, that it necessarily implies a negative ”  Now the statute, under which this partition was made, does contain express words of repeal, and divers acts and parts of acts are enumerated, to which those words apply ; but the acts under which the tenant claims are not mentioned. There has certainly, therefore, been no express repeal of them, and there is no such [ * 88 ] repugnancy in the late statute to the preexisting * provisions of the law of attachments, as necessarily implies a repeal of them.
    But if the Court should be of opinion that the statute of 1817 does repeal the statute regulating attachments, still as that repeal is left to be ascertained by inference of law, it is presumed the statute will receive the most liberal construction, and the repeal be consid ered as having been intended to operate with a saving of all rights actually vested in innocent parties, under the law as it was before the repeal. The cases, which will then be within its operation, will be only such as arose after the passage of the law, which will not include the tenant’s case.
    We contend, however, that the whole proceedings respecting the partition in this case were void, as beyond the jurisdiction of the Court of Probate. It was settled in the case of Pond & Al. vs. Pond Al. 
      , that where one among several heirs or devisees liad conveyed his purparty, the Court of Probate was ousted of its jurisdiction relative to the partition of the estate. The conveyance in the case referred to was from one to another of the heirs; and by the late statute the jurisdiction of the judge of probate is extended to -such a case, but not to the case of a conveyance to a stranger; for the division and assignment is still confined to heirs or devisees, notwithstanding this new provision. And a conveyance from one of them to a stranger will still as effectually oust his jurisdiction, as any conveyance would have done before this statute. An attachment and the levy of an execution upon land passes the title from the debtor, and vests it in the creditor, and, when completed, is a conveyance within the meaning of the law, and is equivalent to a transfer by deed.
    On this point of the want of jurisdiction in the judge of probate, it may be further observed, that considering the tenant’s attachment as a statutory conveyance from one of the heirs to him as a stranger, it necessarily follows, either that the judge of probate had no jurisdiction in the case, or that he is authorized to make partition between heirs * at law and strangers who have [ * 89 ] purchased in. If the former be true, the partition is void, as above stated, for want of jurisdiction in the Court that made it; if the latter be the correct construction, then the partition is void for want of observing the requisitions of the statute. For if the tenant was a purchaser, the partition should have been made between him and the heirs at law, and not between J. H. and the other heirs. His interest and title being, for this purpose, inceptively in the tenant, he should have been notified, and the money awarded" should have been paid or secured to him. But this was not done. The tenant had no notice of the partition, as is required by the statute; although the judge of probate, and the heirs at law, certainly knew that he was interested in the estate; notice in writing of the attachment having been filed in the Probate Court, before the warrant to make the partition issued. "Whichever alternative, therefore, be adopted, the case is equally with the tenant.
    
      
      Pickering, in reply. The attaching creditor cannot be in better condition than his debtor. But the debt, which Joseph H. owed to the intestate, must necessarily have come into the settlement of the estate in the Probate Court, and there set off against his distributive share of the real and personal estate.
    The estate of an heir to an intestate vests, it is true, upon the death; but it is defeasible in various ways; as in case of the insolvency of the intestate, or where the purparty of the heir after a division is taken by a creditor of the intestate, or where the whole of the real estate is assigned by the judge to one or more of the heirs.
    The provision of the new statute, respecting shares conveyed, was intended to preserve the jurisdiction of the judge in every case, where a part of the estate only was conveyed, whether such conveyance was to a co-heir or to a stranger. Suppose an heir to have conveyed his undivided share, and it afterwards appears that the estate is indivisible, shall the judge be prevented from [ * 90 ] assigning * the whole to one under the statute ? Notice of the proceedings to the tenant would have peen fruit less; the judge of probate could not adjudicate upon his claim.
    The cause was postponed for advisement, and, at an adjourned session of this term, the opinion of the Court was delivered by
    
      
      
        Stat. 1817, c. 190.
    
    
      
       4 Yates’s Rep. 74.—1 Binncy, 358, S. C.
    
    
      
       1 Black. Com 89.
    
    
      
       13 Mass. Rep. 413
    
   Wilde, J.

This cause has been argued on both sides with great ability. Nothing, I believe, has escaped the attention of the counsel, which could influence, in any degree, the decision of the cause. In delivering the opinion of the Court, I shall advert only to the principal arguments that have been urged, which will suffice to show the grounds of our determination.

It is admitted that one Susanna Hathorne died intestate and seised in fee of several parcels of real estate, of which the demanded premises are a part, leaving the demandant, with one Joseph Hathorne and sundry other persons, her heirs at law. The demandant claims the land in question in severalty, by virtue of a decree of the judge of probate, assigning the same to her, as one of the heirs of the said Susanna, in the division of the estate. Her title, therefore, depends on the validity of this division and assignment.

The first objection made to it, by the counsel for the tenant, is, that the judge of probate had no jurisdiction of the case , it being admitted that, previously to the division, an attachment was laid by the tenant on the share of the said Joseph Hathorne, and that execution has been duly extended thereon, within thirty days after judgment; so that his title has relation back to the time of the attachment, which was prior to any proceedings in the Probate Court in relation to the estate. The case of Pond & Al. vs. Pond Al. has been relied upon in support of this objection. This case would certainly be in point, but for the statute of 1817, c. 190, by which it is provided that no conveyance, made by any heir or devisee, of his or her interest or estate in the lands of any testator or intestate, * shall take from the judge of probate [ * 91 ] his jurisdiction and authority to divide and assign the real estate of any testator or intestate, among his or her heirs or devi sees.” When an execution is levied on the real estate of the debtor, all his title and interest in the estate is transferred to the creditor, who thereby becomes the purchaser of the estate. 3 Mass. Rep. 219. We consider such a levy, therefore, as equivalent, in legal contemplation, to a conveyance by deed; and this, by the express provision of the statute, is not to take from the judge of probate his jurisdiction.

The next objection, we think, is better founded. It is this, that the tenant is not bound, nor can his estate be affected, by the decree of the judge of probate, he never having been notified of the proceedings in the Probate Court. It is a familiar principle of the common law, that judgments do not bind the rights of any but parties and privies. By a writ of partition none are bound, but the parties named. In such process, therefore, all the co-tenants must be made parties. In this state, a more convenient remedy is provided by petition, in which the petitioner may declare that he is seised in common with persons unknown; and if, after public notice given, no one appears to object to the partition, the petitioner’s share may be set off to him, to hold in severalty. And such partition will bind all the co-tenants, because all are consid ered as having notice. But, unless general notice, according to the statute, be given, all the co-tenants must be made parties, or be notified, or the partition will be void. 2 Mass. Rep. 471.—3 Johns. 459. This rule applies with still greater force to a partition or division made by a judge of probate, because no writ of error lies to the Probate Court; and a party having no notice, cannot be supposed to have an opportunity to appeal. In the case of Smith vs. Rice, 11 Mass. Rep. 507, it was accordingly determined that partition, made by order of the judge of probate, was void as to a person not notified. The reasons given for * the [ * 92 ] judgment in that case are perfectly convincing, and are decisive as to the question under consideration.

The remaining questions relate to the title of the tenant; as to which two objections have been made. 1st. That the statute of 1817, before referred to, has repealed the law of attachments, so far as it relates to a case like the present. And, 2d. That the attachment and levy, if valid, could only transfer to the creditor the same estate which the debtor had ; and that this was a defeasible estate, subject to the debt due from him to the intestate. If either of these objections be well founded, the tenant’s title must fail, and no objection will remain to the proceedings in the Probate Court.

As to the first of these objections, it is sufficient to remark that we can perceive no repugnance in the two statutes. The law does not favor repeals by implication; they are not to be allowed, unless the repugnancy be quite plain. Bac. Abr. Statute D.

It cannot be supposed that the provision, for the division of estates among heirs or devisees, was intended to restrain their right of alienation ; for it refers to such right, as an existing one. If then an heir may convey his share in the estate by deed, of which I think there can be no doubt, no reason can be given why it should not be liable to be taken on execution. There can be no more difficulty in any such case, in making partition in the Probate Court, than there would be in other courts; unless the validity of the conveyance or the levy should be questioned. In that case it is true, as suggested in the case of Pond & Al. vs. Pond & Al., questions might arise, which would seem not altogether proper for the consideration of a Probate Court. The legislature, however, have not thought this a sufficient objection to the giving of jurisdiction to the judge of probate in such cases; and it cannot affect the construction of the statute, as to the point in question. [ * 93 ] * The other objection would be fatal to the title of the tenant, if it were true that Joseph Hathorne had but a defeasible estate, as has been suggested. For the tenant has no greater or better estate than Joseph Hathorne had, at the time of the attachment. But we are of opinion that his estate was no more subject to the debt formerly due to the intestate, than it was to any other debt. In the division of real estate among heirs, no deduction can be made from the share of any one of them, on account of any debt due from him to the estate. This can only be done in cases of advancement. It cannot be done even in the distribution of the personal estate; there is no law authorizing a judge of probate so to do. The course is, to make an equal distribution ; and the administrator, if he would avail himself of the right of set off, may refuse to pay this distributive share ; but this right of set off does not constitute a lien on the estate.

For these reasons, we think the tenant’s title under the levy is good, and that the demandant must be called.

Demandant nonsuit  