
    Jabez Chickering versus Andrew Lovejoy and Another.
    (l. conveys land to B. with warranty, and B. gives A. a bond, reciting the said conveyance, with condition to reconvey the same to him on .payment of a sum of money within three years; after the expiration of the three years, C. agrees to purchase the land of B., who thereupon conveys it to A., by whom it is at the same time conveyed to C. Both these deeds are immediately registered.—Previous to the execution of these two deeds, D., a creditor of A., had caused A.’s interest in the land to be attached on mesne process, and after the deeds were registered, having recovered judgment in his suit, caused his execution to be extended on the land, as the estate of A. — It was holden, that the said two deeds were to be considered as parts of one contract and that A.’s instantaneous seizin could not be the subject of an attachment.
    This was a writ of Entry sur disseizin, in which the demandant counted on his own seizin of a piece of land in Boston, and on a disseizen by the tenants.
    The cause was tried upon the general issue, before Jackson, J , at the last November term in this county.
    It appeared, at the trial, that the demanded premises were formerly the property of one Jesse B. Wilcox, under whom both the parties claimed to hold the same. The said Wilcox, by his deed dated the 2d of July, 1806, * conveyed the premises to one Elijah Withington in fee, with covenants of general warranty. This deed was registered the 3d day of the same July. The said Withington, on the same 2d July, gave his bond to the said Wilcox in a sum of $ 3000, with a condition there underwritten, reciting that Wilcox had on that day conveyed to him the premises, and had delivered possession thereof to him, and that he had agreed to let the same ; and the condition was, that the said Withington, on being paid the sum of $ 1088, with lawful interest, within three years, and such further sums as should within that time be due to him from said Wilcox, should reconvey the said premises to Wilcox, and account with him for the rent. This bond was recorded in the registry of deeds for this county on the 14th of July, 1807. The said Withing-ton did not then understand or suppose, that this conveyance might be considered as a mortgage, or that the said Wilcox could have any right to a reconveyance of the premises, at any time after the 2d of July, 1809.
    On the 8th of July, 1809, the demandant was about purchasing the premises of Withington, and finally agreed to pay a certain sum, which proved to be a little more than was then due from Wilcox to Withington. Wilcox was present at the whole of this negotiation, and agreed to all that was done. The whole consideration money was paid by the demandant to Withington; and he afterwards, on settling his account with Wilcox, paid him the abovementioned excess. It was thought proper, or more convenient, in this transaction, that Withington should reconvey the premises to Wilcox, and that the latter should convey the same to the demandant. Two deeds were accordingly prepared, both bearing date on the Sth of July, 1809 ; one from Withington to Wilcox, and the other from Wilcox to the demandant, both containing covenants of warranty. These two deeds were not' executed until the 17th of July, 1809, when they were both executed and acknowledged by the respective grantors, and both immediately delivered into * the registry of deeds, where they were recorded, one immediately after the other. On the same 17th of July, a memorandum was made and signed by the said Wilcox, on the margin of the leaf on which said bond was recorded, acknowledging that the condition of the bond had been performed, and desiring that the said record might be discharged. During all this time the said three parties were wholly ignorant of the attachment upon the premises hereafter mentioned.
    On the 10th of July, 1809, one Enoch Drake sued out his writ of attachment against said Wilcox, and caused all his right, title, and interest in the demanded premises to be attached thereon on that day. The debt, to recover which that action was brought, arose on a contract made between those two parties on the 6th of February, 1807. By that writ the sheriff was commanded to attach the goods or estate of Wilcox to the value of $ 800, and the plaintiff’s damages were laid in the writ at the same sum. Drake recovered judgment in that suit for $796.86 debt, and $ 14.19 costs ; and within thirty days after the judgment, namely, on the 20th of Febniarv, 1810, caused his execution thereon to be levied on the premises, as the estate of Wilcox; and the same were accordingly appraised and set off to the said Drake for the sum of $830, in full satisfaction of that execution, and of the cost of levying the same. It was agreed, at the trial, that the present tenants had all the estate in the premises which the said Drake had therein by virtue of the levy of said execution.
    The judge directed a verdict for the demandant, subject to the opinion of the Court upon the foregoing report. If the Court should be of opinion, that the demandant was entitled to recover, the verdict was to stand, and judgment be entered thereon ; otherwise it was to be set aside, and a verdict entered for the tenants, and judgment accordingly.
    Cooke, for the
    tenants, argued, that, at the time of the * attachment of the premises by Drake, Wilcox had an equity of redemption, on which that attachment operated ; and that, by the posterior conveyance by Witkington to him, the mortgage was discharged, and a clear estate in fee vested in Wilcox, to which Drake's process immediately attached, the attachment of the equity being converted into an attachment of the fee.
    
      The demandant (a counsellor of the court),
    contended, that the bond, given by Withington to Wilcox, did not operate to change the absolute estate, which had already vested in the former, into an estate in mortgage. It was not a defeasance, but a mere personal-contract. 
    
    The seizin of Wilcox, under Withington's deed, was but for an instant. No estate vested in him. His wife could not claim her dower  in the land in right of such a seizin ; and, a fortiori, a creditor could not avail himself of it.
    But a more fatal objection exists against the title derived from Drake's attachment and levy. The former was for $800 only ; the latter was $830. He certainly can claim, as against the demandant’s title, no more than the amount of his supposed lien.  He then extended his execution on a part of the land which he never attached. To such part he acquired no title. But there is no means of separating such surplus from the residue ; and his title must wholly fail.
    
      Cooke, in reply.
    The costs, by which Drake's judgment was made to exceed the ad damnum in his writ, were merely incidental. The demandant was bound to take notice of the lien, that it was to the amount of the judgment, to which the plaintiff in that action was entitled. In the case of Amory vs. Fairbanks al., 
       a mortgagee, who had entered and possessed himself of the mortgaged premises, for condition broken, was still held entitled to recover on his bond, beyond the value of the premises.
    
      
      
        Bac. Abr. Mortgage A.
      
    
    
      
      9) Holbrook vs. Finney, 4 Mass. Rep. 566.
    
    
      
      
        Borden, vs. Borden, 5 Mass. Rep. 78.
    
    
      
       3 Mass. Rep. 562.
    
   Wilde, J.

delivered the opinion of the Court. Several questions have been raised in the argument of this cause ; as to some of which, more consideration, than we have * hitherto bestowed upon them, might probably be necessary, to enable us to come to a satisfactory decision. The view we have taken, however, of one part of the case, we think decisive as to the question of title, and renders the other points, which have been made, immaterial.

Both parties, it appears, claim title under one Wilcox ; and there can be no doubt, that the demandant has derived the legal estate from him ; unless the intended operation of the deeds, under which he claims, has been defeated by the intervention of Drake’s attachment, and the proceedings consequent thereon.

On the 10th of July, 1809, when Drake made his attachment, it is admitted, that Wilcox had parted with the legal estate, and had then only an equity of redemption. But it is contended by the counse for the tenants, that afterwards, on the 17th of the same month, when Withington conveyed to Wilcox, there was, by operation of law, a transmutation of the attachment on the equity into an attachment on the land, and that Drake had the same lien upon it as if his attachment had been made at the time of that conveyance.

We think it difficult for the'tenants to maintain this position. But supposing it otherwise, we still think they must fail in their defence on another ground ; as to which we cannot perceive any reasonable cause of doubt.

The deed from Withington to Wilcox, and that from the latter to the demandant, were executed, as it appears, at the same time ; and all the other acts, necessary to give them validity, were simultaneous. These deeds must, then, be considered as parts - of the same contract, Wilcox being the instrument of conveyance, and having only an instantaneous seizin for that purpose, Such a seizin, we are of opinion, cannot be the subject of an attachment. This position seems a necessary result from the principles laid down in the case of Holbrook vs. Finney, which was cited at the bar, and where the question was presented in a point of view most favorable to the argument' now made * by the counsel for the tenants ; that being an action of dower, which is ever entitled to favor in the application of legal principles. But the Court, in that case, ruled, that a seizin of the husband, for an instant, was not sufficient to entitle the wife to her dower.

The general principle is well illustrated by the case put by the Chief Justice, in delivering the opinion in the case referred to. Thus, “■ If a feoffment be made to B. and his heirs, to the usé of C. and his heirs, the wife of B. shall not be endowed ; for the same feoffment, which gave him a seizin, by the statute of uses transferred it to C.” «v2 fortiori, we think, the creditors of B., in such a case, could not intercept, by an attachment, the transfer of the estate to C. And viewing the two deeds, from Withington to Wilcox, and from Wilcox to the demandant, as parts of one contract, made and executed at one time, we can perceive no distinction, in principle, between that case and the one at bar.

This view of the cause makes it unnecessary for us to take into consideration the objections urged in relation to the supposed irregularity of Drake's proceedings, in extending his execution. For, however regular they may have been, he can have acquired no title thereby, except to an equity, which cannot be set up against a legal estate. But, as one objection involves a question of general practice, I think it proper to observe, that the Court consider it entitled to great notice. Drake's attachment was made to respond for damages and costs, to the amount of $ 800, and no more. He could not, therefore, thereby have a lien on the property attached beyond that amount. But he, having extended his execution on the land at the appraised value of $ 830, the tenants now claim to hold the same by virtue of his attachment. This is certainly a singular claim ; and we know no principle to support it. As to the excess, it is very clear, that the title under the attachment must fail; and it would be difficult to devise a rule, by which, consistently with known principles, the * property may be so apportioned, as to admit the reference of title to any distinct part of the premises, corresponding in value with the amount of the attachment. But of this we give no decided opinion ; being satisfied, on the other ground, that the demandant is entitled to judgment.

Judgment according to the verdict.

[See Mass. Rev. St. c. 73, § 9; 1 Hilliard’s Abridgment, 447 - 451. — Ed.] 
      
       [As to this doctrine of instantaneous seizin, see Clark vs. Munroe, 14 Mass 351; Hilliard's Abridgment, vol. i., and cases there cited.— Ed.]
     