
    Samuel Gore versus Samuel Brazier.
    When an execution is regularly levied on lands liable by law to the extent, and duly returned and registered, and seisin and possession delivered by the sheriff to the creditor, he is to be considered in the actual seisin and possession, and may by virtue thereof either maintain a real action declaring on his own seisin; or he may maintain trespass against the tenant, who shall continue his possession without the creditor’s consent; or he may reenter on him after the levy is completed ; whence it follows that seisin delivered to the creditor, on such levy, is a legal ouster of the tenant from the lands. Langdon vs. Potter 8f AL, ante, 215, S. P. -
    An execution against the goods and estate of a deceased person in the hands of his executor may be levied on lands of which the testator died seised, in post session of the alienee of a devisee ; and this though the executor, being also residuary legatee, has given bond with sureties to the judge of probate for the payment of the debts and legacies of the deceased.
    In an action upon a covenant of warranty of lands, the measure of damages is the value of the lands at the time of the eviction.
    Covenant broken upon a deed of the defendant and one Henry Brazier, deceased, dated December 28, 1801, conveying to the plaintiff in fee simple a certain messuage and land in Boston, in which were contained the usual covenants, viz., that the grantors were lawfully seised in fee of the premises, that they were free of all encumbrances, that the grantors had good right to sell and convey, and would warrant and defend the same to the plaintiff against the lawful claims and demands of all persons.
    The declaration contained two counts; the first count alleged generally a breach of all the covenants; the second count sets forth specially a breach of the covenants that the premises were free of all encumbrances, and that the grantors would warrant and defend the same to the plaintiff.
    [ * 524 ] #In a case stated for the opinion of the Court, the making the deed as set forth in the declaration was agreed. It was also agreed that the estate in question formerly belonged to Moses Gill, Esq., deceased, who by his last will devised the same to Moses Gill, his nephew, whom he also made executor of his will and residuary legatee, and who, upon proving the said will after the death of the said testator, upon probate of the will, gave bond to the judge of probate with sureties, conditioned to pay the debts and legacies of the testator. The said testator died seised; and after his death, the said Moses, the nephew, by his deed dated July 19th, 1800, sold and conveyed the same messuage, &c., to the said Samuel and Henry in fee simple, who afterwards conveyed the same to the plaintiff as above stated. At the Supreme Judicial Court, holden at Boston, in August, 1804, Ward Nicholas Boylston, administrator with the will annexed of the estate of Thomas Boylston, in an action against the said executor, recovered judgment against the estate of the said Moses Gill, deceased, for the sum of 106,176 dollars, 66 cents damage and costs of suit, and on the 11th of September following, sued out execution upon the said judgment in due form of law, against the estate of the said Moses, deceased, and not finding sufficient personal or real estate undevised, wherewith to satisfy said execution, caused the same to be levied on the said messuage, &c., and accordingly on the 19th day of said September, the same having been previously duly appraised, seisin and possession thereof were delivered to the said W. N. Boylston by one O. H., then a deputy sheriff of the county of Suffolk. The plaintiff, knowing that the said messuage, &c., was part of the estate of the said Moses Gill, deceased, and believing that it was liable for the payment of his debts, did not resist the service of the said execution, under which the said W. N. Boylston has ever since held possession of the said messuage, &c.
    If, upon these facts, the Court should be of opinion that the plaintiff could recover in this action, it was agreed that the damages should be ascertained by assessors thereafter to be appointed, and judgment be rendered accordingly. If, in the opinion of the Court, the plaintiff could not recover, he was to become nonsuit and the defendant to recover costs.
    * The cause was argued by Gore and Jackson, for the [ * 525 ] plaintiff, and Dexter md Sullivan, for the defendant, at • the last July adjournment. The Court calling on the defendant’s counsel to show that this was no eviction,
    
      Sullivan, for the defendant,
    said he should contend, 1st. that at the time of making the deed, on which this action was brought, the defendant had good right to convey the estate, and that the same was free of encumbrances; and, 2d. that here was no such eviction shown as entitles the plaintiff to an action on the covenant to warrant and defend.
    Here was clearly no specific encumbrance, as a mortgage or other like charge, forming a lien upon the estate. This demand of Boylston on the estate of Gill, the testator, was so far from a specific charge on the estate at the time of this conveyance, that it was then merely a demand of damages, and it was not until four years after that period that it was changed by a judgment of court into a liquidated and ascertained debt.
    The right of a judgment creditor to extend his execution upon land being derived wholly from the statute, the case must be clearly within the statute to entitle him. Now it is apparent that the statute of 1784, March 4, c. 9, § 7, under which Boylston’s execution was extended, contemplates only estate in the hands of an executor, administrator, or heir; for it provides only the same method of levying, appraising, &c., as in ordinary cases. But who is to appoint an appraiser, on the part of the defendant, in a case where land is in the hands of a stranger under a bona fide purchase ? Not the executor. He has no concern in the appraising the land of a stranger. Nor the purchaser in possession, for he is no party to the process. The officer would not receive his nomination Again, the provision for redeeming such estate so taken, is expressly limited to the executor, administrator, or heir. If in this case the plaintiff had redeemed this estate by paying the amount at which it was appraised, it is at least questionable whether it would not again be liable in his hands to respond for the debts of Mr. Gill, the testator. This reasoning is fortified by a provision in a prior statute, 1784, February 6, c. 1, <§> 18, that when land devised shall be taken in execution, or sold for payment of the testator’s debts, the other devisees, &c., shall con- [ * 526 ] tribute * their average or proportional part of such loss, &e., and such devisee may maintain an action therefor, while the purchaser under the will, if his land is liable to be taken, is left without remedy.
    The law cannot be supposed to give a better remedy for a debt due from the estate of a deceased person than from one living. Yet where a debtor has bona fide, and for a valuable consideration, sold an estate, the creditor of the grantor can never, after the transfer avail himself of such estate.
    Where an executor is also made residuary legatee, and gives bone to pay the testator’s debts and legacies, it is a fair presumption that the proceeds of any lands which he sells is appropriated to the pay ment of such debts and legacies. The sureties, if they are not indemnified, will naturally take care that such appropriation is made. But whether they are indemnified or not, the creditor’s legal and honest remedy is upon such bond, and not against an estate in the hands of a fair purchaser, who has no means, and who was under no obligation to watch over the executor in the discharge of his office.
    2. But we contend that here was no such eviction as entitles the plaintiff to his action on the covenant to warrant and defend. The levy of an execution upon land gives the creditor nothing more than a right of entry, and does not amount to an eviction of the tenant. The only writ of execution in England, by which the lands of the judgment debtor may be seised is the elegit, and this is the only one which bears an affinity to our executions. Under that writ the sheriff delivers, not an actual, but only a legal possession of a moiety of the lands of the debtor, and to obtain actual possession, the plaintiff must proceed by ejectment . And we contend that the plaintiff was not obliged to give up the possession. If a tenant will voluntarily deliver up his land, he can derive no right of action against his warrantor. He was not forced off the land. He derived under the defendant, and ought in good faith to have held possession, to presume every entry upon him to be wrongful, and to have given notice of the claim to his grantor that he might have an * opportunity to defend the title which [ * 527 J he had warranted. If he had so conducted, he might still have retained the possession, and by putting Boylston to his ejectment, have given the defendant an opportunity to dispute his right to levy his execution on land situated as this was. We say in short that the plaintiff cannot support his action upon the covenant to warrant and defend, without showing some expulsion, which he could not resist, or without producing some record of a trial, on which the merits of his title to this land have been adjudged against him.
    
      Jackson, for the plaintiff,
    said the defendant was charged with no fraud in this case, and it was therefore perfectly immaterial whether this encumbrance was known to him when he executed the deed containing the covenants declared on or not. Here was clearly an encumbrance; for the land was bound, in whose hands soever it might be found», for the payment of the debts of Moses Gill, deceased.
    The statute directing the settlement of the estates of persons deceased, &c., 1783, c. 32, <§> 7, enacts, that the real estate of any testator or intestate shall be liable to be taken by any execution 
      
      issuing upon judgments recovered against executors or administrators, in such capacity, being the proper debts of the testator or intestate, and that the method of levying, &c., shall be the same as by law is provided respecting other real estates levied upon, &c.
    The statute directing the issuing, extending and serving executions, 1783, c. 57, <§, 2, prescribes the method referred to in the other act, and among other things directs that the officer shall deliver possession and seisin of lands levied upon to the creditor, and declares that such execution being returned and recorded, shall make as good a title to the creditor and his heirs and assigns as the debtor had therein.
    
    By statute 1783, c. 32, <§> 3, it is expressly enacted that the real estate, of which any one shall die seised, shall stand chargeable with all the debts of the deceased.
    
    These statutes, upon any fair construction, must then intend that the lands, which were the testator’s or intestate’s, at the time of his decease, continue chargeable for his debts, and may be [ * 528 ] extended upon by execution, and such execution * extended pursuant to the forms by law prescribed, shall transfer to the creditor the whole interest, estate, and title of the deceased at the time of his death.
    By statute 1788, c. 66, ■§> 2, no action can be commenced against an executor or administrator for any beneficial purpose within twelve months next after his taking upon him such trust. If, then, lands aliened by an heir or devisee cease to be answerable for the debts of the testator or intestate, as has been contended by the defendant’s counsel, the purpose of the statutes before cited may be completely defeated. The construction contended for by the defendant’s counsel effectually repeals those statutes.
    It was said a debtor may aliene his lands in his lifetime, and if done bona fide and for valuable consideration, the alienation will bind creditors. The truth of this position is not denied. But the law sometimes binds estates of living persons, so as to make them liable for demands of former tenants, notwithstanding an alienation, as is the case with the officers of the United. States’ revenue. And the statutes above quoted, fix the estates of persons dying in the same manner, making them liable for all demands against thr m existing at the time of their decease.
    But we rely with much confidence on the plaintiff’s right to recover, under these facts, upon the defendant’s covenant to warrant and defend the premises granted. That covenant has been broken by Boylston’s entry upon us under an elder good title. This was an actual ouster and eviction. There is no process in Englanu analogous to our executions seizing and transferring estates of free* hold ; so that no authorities in the English books can be expected to apply to the point. It is a case peculiarly arising out of our own statutes, and by those statutes must the rights of the parties bo ascertained.
    By the statute 1783, c. 57, § 2, before cited, the officer extending an execution upon real estate is directed to deliver to the creditor seisin and possession of such estate. Now, two persons cannot have seisin and possession of land at the same time. When, therefore, seisin was delivered to Boylston, as the case finds, Gore was disseised. And it is quite immaterial how long such disseisin continues. One minute’s lawful ouster was a breach of the covenant which we are now considering.
    *The provisions in the statute last cited, that the cred- [ * 529 ] itor, upon the debtor’s redeeming the estate levied upon, shall account for the rents and profits which may have accrued within the year, necessarily implies that the creditor has been, from the time of the levy, in actual possession and pernancy of the profits. The words of the statute respecting this point are too clear to admit of any doubt in the construction. It was impossible to levy Boylston’s execution without disseising the plaintiff.
    But admitting, for the argument’s sake, that the extent of the execution did not put Boylston into the actual possession, and merely gave him a title of entry, so that to obtain the possession he must have brought his action against Gore; yet if Gore was satisfied, and if he can now satisfy the Court, that in such action judgment would inevitably go against him, it is absurd to say it was necessary for him to reenter upon Boylston, and subject himself to an action against which he could make no defence.
    To this point we cite 6 Vin. Abr. Tit. Covenant, Z. 19. In an action of covenant for quiet enjoyment, the plaintiff set forth that the lands belonged to the king, who by letters patent had conveyed them to J. S'. The defendant demurred, because the plaintiff did not allege an entry, and so he could not be disturbed. The court held the declaration good enough, for the plaintiff, having set forth a title in the patentee of the king, shall not be enforced to enter, and subject himself to an action for a tortious act. (Freeman’s Rep. 122, pi. 148). So here, if the plaintiff was assured that Boylr ¡ton had a good title, his entry would have been tortious, and would have subjected him to an action.
    6 Vin. Abr. Tit. Covenant, L. 7, pi. 1. If a man makes a feoffment of land by deed with warranty, and a stranger extends a cognizance of the feoffer’s upon the feoffee, covenant lies here This is as near to the case at bar as under the English practice can be. The mere extent of the recognizance was held a breach of the warranty.
    [ * 530 ] * The same point was adjudged in the case of Pincombe vs. Rudge 
      , and the reason there given, viz. that no writ of warrantia chartte lay, applies to all cases in this country, an action of covenant broken being the only remedy known in our practice. The same case is in Hob. 28, and it also shows that an entry under the elder title is all that is necessary to maintain such action. •
    If we were to concede that a judgment creditor could not entei under an extent of his execution without action brought, we should still insist that the tertenant, if he is satisfied that he has no sufficient defence, is not obliged to hold possession and wait for an action to be brought. On this point Gibbs’s reasoning in the case of Taylor vs. Cole, cited for the defendant, is very forcible.
    Further, if the plaintiff had entered, Boylston could have brought no action but on his own seisin and a disseisin by Gore; in which there could have been no voucher. Brazier, indeed, might have had notice. It is the same thing to him that he has notice now. If he will convince the Court that Boylston could not have evicted the plaintiff, he will do all we wish to have done; he will make what we shall consider a complete defence to this action. In order to support our action, we must show to the Court that Boylston claimed under an elder and better title than we had. If we do not succeed in this, we have no right to recover. The reasoning of the Court m the case last referred to is directly to this point.
    As to the observation that land, once taken from, and redeemed by a purchaser, is still liable for the debts of the deceased testator, it is equally true upon either position. But it is apprehended that land, once taken in satisfaction of a debt due from the deceased and redeemed by the executor or by the tenant in possession, is forever afterwards discharged from the lien, as well as in the case of land sold by order of court, when the personal estate is insuffi cient for the payment of the debts and legacies.
    
      Gore, on the same side,
    said, that the arguments on the part of the defendant seemed intended more to show the [ * 531 ] impolicy *of the law as it was, than to show that it was not with the plaintiff in this case. Words could not indeed be invented, which should more positively ánd explicitly create a lien on the estate of persons dying, for the payment of their debts, than those which the legislature have used.
    The case of a living debtor is not analogous, except under the bankrupt law, the policy of which is extremely similar, as to this point, to that of the law in the case before the Court.
    The extent of an execution gives to the creditor every valuable interest which the debtor had in the land at the time of the extent, or rather, in the present case, every valuable interest which the deceased debtor had in it at the time of his death.
    As to the eviction, it is perfectly immaterial whether it be in paia only, or by process of law, so that it is in right of an elder and better title . To this purpose the principles of the case of Allen vs. Dundas 
       apply very forcibly. In that case a voluntary payment by a debtor to an executor under a forged will was held a good discharge. It was admitted that if the payment had been made under the coercion of a suit at law, the debtor would have been protected against any other demand for it. Justice Ashurst said, “ I think that makes no difference.” The defendant had judgment. From this case, and from every principle of sound reason, it follows that whenever a man does a thing voluntarily, which thing the law would at the same time compel him to do, he shall derive all the rights which such act confers upon him, as fully as if the process of law had been used.
    
      Dexter, in reply,
    considered that the question whether there was such a lien on the real estate of deceased persons, as subjected it in the hands of a bona fide purchaser to be taken in execution by a creditor, was the most important in the cause.
    As land is not liable at common law to be taken in execution, our statutes can alone be consulted. So far as English decisions bear on the point, they are against the plaintiff. The only case at com mon law that has any analogy to this point, is that where one binds himself and his heirs in a bond. The land of the obligor is bound after his decease in the hands of * the heir. [ * 532 ] But when the heir alienes for a valuable consideration, it ceases to be bound, though the heir continues liable. Instead of saying that the land was'liable, it would be more correct to say that the heir was liable in virtue of the land being assets in his hands.
    When our statute declares that the real estate, of which any one may die seised, shall stand chargeable with the debts of the deceased, it intends no more than that it shall be chargeable in the same manner and degree as personal estate was chargeable before. But personal estate was liable no longer than it continued in pas session of the executor. When he had bona fide sold it, the lien upon i was gone. The presumption is that the money received in lieu of it is appropriated to the payment of debts or other purposes of the will. The same presumption arises in this case that the executor who sold this estate to the defendant applied the proceeds to discharge the debts of his testator. And there is no fitness in making the same estate twice answer for such debts.
    If a lien continues on land after a bona fide conveyance by an heir or devisee, there may exist encumbrances which the most wary and diligent purchaser has no means of discovering. It would be vain for him to look into the records of the county for conveyances, and inquire of the sheriff for attachments. The creditor of some deceased person, from whom the estate may have descended, may, unknown to all parties, have a demand which will take it from him, notwithstanding his utmost caution. Perhaps the very cause of action does not arise until twenty years after the death of the testator or intestate, and the lands may have passed through the hands of as many fair purchasers. A construction involving such mischievous consequences should be absolutely unavoidable, or it ought not to prevail.
    What reason of sound policy can be invented which requires a greater liability in the estate of a person deceased than in that of a person in life ? Yet a bona fide purchaser for a valuable consideration can never be disturbed by the creditor of his grantor. The testator might himself, one hour before his death, have [ * 533 ] sold this estate to Mr. Brazier, and *he would have held it discharged of all claim on account of the testator’s debts. It should appear a little strange that a transfer by the testator, to whom all his debts and embarrassments were known, should have more effect than the conveyance by a devisee, who may be ignorant of them all.
    But we contend that such a construction of the statute is unnecessary, and therefore not to be adopted. The whole object of the statute is to direct the distribution of intestate estates. The second section enacts that personal estate, not bequeathed, shall be distributed in the same manner as real estate not devised is ordered to be distributed by the first section. The third section, which is. introduced merely as a proviso to the preceding one, declares that such personal estate shall, however, be chargeable with the payment of the just debts of the deceased, and after such payment the surplus shall be distributed, &c. At the close of the section is added, “ And the real estate shall stand chargeable with all the debts of the deceased, over and above what the personal estate shall be sufficient to pay as aforesaid.” We contend the meaning to be that the rights of creditors as to the personal, and as to the real estate also, shall be good and valid, notwithstanding any order of distribution among the heirs by decree of the Probate Court; that the rea estate shall be chargeable in the same manner as the personal estate, that is, so long as one remains in the possession of the heir or perhaps of the devisee, who is hares facius, and the other in the hands of the executor or administrator; and neither one nor the other when it has passed into the hands of a fair, purchaser. Indeed it would be surprising to find so important a principle as this incidentally introduced in a statute, the principal provisions of which relate to a subject altogether distinct.
    The provision of the statute 1783, c. 32, <§> 7, subjecting the real estate of any testator or intestate to.be taken in execution, we contend, means, that it shall be so liable so long as it remains part of the estate of the person deceased. This puts it on the same footing with personal chattels, which are assets so long as they remain in the hands of the executor or administrator. The provision for the redemption, which * must be [ * 534 ] intended to be as broad as the liability, strongly supports this construction.
    The extending of an execution in this case can have no more effect than when made upon land of a living debtor. The effect in that case is to “ make as good a title to the creditor as the debtor had therein.” Now, this must refer to the time of the extent. But at the time of this extent, the whole title was gone from the testator, and from Moses Gill, the younger, whether as executor or devisee; so that in fact nothing passed by the extent. The words of the statute will not support the position made by the plaintiff. When so important a change of the law was intended, it is strongly to be presumed that the legislature would use apt words, such as would express their intentions without leaving them to be discovered by a labored construction.
    Many difficulties and inconveniences arise from the construction contended for by the plaintiff. It will be agreed that where the right of entry is gone, a creditor cannot extend his execution. Thus five years’ ouster and a descent cast entirely vacates this provision, important as it is.
    By that construction the sheriff is made a judge between conflicting titles to real estate. He is to trace back the title through all the transfers up to the deceased debtor, and determining all the transfers void, to deliver seisin to the creditor. If he misjudges (and he must be well versed in the law of conveyancing if he is not liable to misjudge), he is a trespasser. If it be said, the same difficulty exists where the sheriff seizes chattels in execution, the answer is, that possession is a great indicium of property in chattels, and 
      prima facie evidence. But possession is no evidence of property in real estate.
    Such a construction is unnecessary. For, by our law, executors, as well as administrators, give bond for the faithful discharge of their trust, which is an abundant security to creditors. Yet in England. where executors are not required to give bond, the personal estate, which is alone liable to creditors, ceases to be liab e after it has passed into the hands of a purchaser.
    As to the interest which the judgment creditor gains in real estate by the extent of an execution upon it, we say that | * 535 ] he * gains such a possession as enables him to try his right; a mere legal possession being all that is necessary for that purpose. To do more, to turn the tenant out of possession would be' improper and unjustifiable; for he may claim by a title paramount to that of the deceased debtor. It is sufficient for the creditor that he has a legal remedy by ejectment. If he obtain judgment in that, his writ of habere facias possessionem will give him the actual possession.
    The provision in the statute, that creditors shall account for the rents and profits upon redemption by the debtor, was made for the cases most commonly occurring, viz. where the judgment debtor is in possession of the land and delivers it up quietly, as he will ordinarily do. But it has no application to the case of a third person who should be turned out of possession.
    We contend, then, with confidence that this action cannot be supported on either of the counts in the declaration. If, by virtue of extending the execution, Mr. Boylston acquired a right of entry, we do not insist that the plaintiff was obliged to hold possession against him. But this we have shown not to be the case. Neither the execution, nor the judgment on which it issued, determined the title to this estate. They proved nothing more than that the estate of Gill was indebted to Boylston in the sum mentioned. If a purchaser is to be evicted under that judgment, he ought to be allowed to question the merits of it. If he cannot be permitted to do this, his land ought not to be held liable.
    
      
       2 Gwil. Bac. Abr. 711. Title Execution, C. 2.-2 Tidd’s Practice, 949.—Taylor vs. Cole, 3 Term R. 292.—2 Eq. Ca. Abr. 380.
    
    
      
      
        Yelv. 139.
    
    
      
      
        Hob. Rev 26
    
    
      
       3 Term R. 125.
    
   The action was continued nisi, and, at the last September term in Norfolk, the following opinion of the Court was delivered by

Parsons, C. J.

The action is covenant broken, in which the plaintiff has demanded against the defendant his damages for the breach of certain covenants contained in a deed of conveyance of land in fee simple, with general warranty, executed on the 28th of December, 1801, to the plaintiff, by the defendant and one Henry Brazier, who died before the commencement of the action. The parties agree that the late Moses Gill, Esq., was seised of the premises in fee, and by his last will made his nephew, Moses Gill, his executor * and residuary legatee, and [ * 536 ] that under the residuary devise, the premises were devised to the executor in fee; that the testator died so seised; that his will has been duly proved; that the executor gave bond with sureties to the judge of probate for the payment of the debts of the testator and of the legacies bequeathed in his will; that after the testator’s death, his nephew, by his deed, dated July 18th, 1800, conveyed the premises in fee simple to the said Samuel and Henry Brazier; that afterwards Ward Nicholas Boylston, as administrator with the will annexed of the estate of Thomas Boylston, recovered judgment in August, 1804, against the estate of the said Moses Gill, the testator, for 106,176 dollars, 66 cents, and costs of suit; that on the 19th of September next following, execution on that judgment was levied in due form of law on the premises then in the plaintiff’s possession ; and seisin and possession thereof delivered to the said Ward Nicholas Boylston, the plaintiff making no resistance to the levy; and that thereupon the said W. N. Boylston entered and took possession. If this levy, with the seisin and possession accompanying it, is a lawful ouster of the plaintiff, he must recover his damages, the defendant agreeing in that case to be defaulted; otherwise the plaintiff is to be nonsuit.

The plaintiff, to maintain his action, relies on several statutes of the commonwealth. By the statute of 1783, c. 32, § 1, when the goods and chattels belonging to the estate of any person deceased shall be insufficient to pay his debts and legacies, so much of his real estate as shall be necessary therefor may be sold by the executor or administrator on obtaining license. By the 7th section of that statute, the real estate of any testator or intestate is made liable to be taken and levied upon by any execution issuing on a judgment recovered against an executor or administrator, for any debt due by the deceased, and the manner of the extent shall be the same as in levying executions on other real estates, and the estate may be redeemed by the executor, administrator, or heirs, in like manner .

The statute of 1783, c. 57, 2, describes the manner in which executions may be levied on other real estates, and directs * the sheriff, after appraisement, to deliver possession [ * 537 ] and seisin thereof to the creditor.

From the literal construction of these statutes we must conclude that, where lands liable to be taken in execution are legally ex tended on, the judgment creditor is in fact seised and possessed of them; but to this construction it is objected that these statutes ought to have a construction analogous to the law authorizing the extent of lands by an elegit; that after a reasonable extent ascertained by the jury, and the delivery of a moiety of the lands by the sheriff to the judgment creditor, he has not thereby the actual Dossession of the land, but only a right of entry, which he may exercise if he can peaceably, or he must bring ejectment to get the possession.

If the authority of the sheriff in extending an elegit was the same which the sheriff has by our statutes in taking lands in execution, the argument would have great weight; but no act of parliament, or rule of the common law, has made it the duty of the sheriff to put the judgment creditor, suing an elegit, into the possession of the lands. Our statutes direct him expressly to deliver seisin and possession to the creditor. The satisfaction for his debt, which the tenant by elegit receives, is of a different nature from the satisfaction of an execution by an extent on lands pursuant to our statutes. In the former case, the tenant holds the lands at a reasonable extent until his debt be paid; and if prevented from entering by the debtor, at the time of the liberate, still he shall hold the lands from the time when he obtains possession until he is satisfied. In the latter case, the lands, and not the annual profits, are appraised at their true value, and the creditor holds the lands in fee, subject to redemption by the debtor. And the terms of redemption clearly suppose the creditor to have the possession from the time of the levy. For the third section of the act last cited, provides that the debtor may within a year after the extent, and not afterwards, re deem the land by paying to the creditor, or the tenant in possession under his title, the whole debt with interest, with the reasonable charges and expenses of repairing and improving the same, deducting the rents and profits.

[ * 538 ] * It is however urged that if this construction be admitted, when the debtor is the tertenant at the time of the levy, it ought not to be extended to cases where he is not in the actual possession, because the sheriff might levy the execution on lands not the debtor’s, and might dispossess the right owner. It must be observed that our statute provides but one method of levying executions on lands, and by this method the sheriff must deliver seisin and possession to the creditor. If, therefore, the lands taken are liable to the extent, this method it is the duty of the sheriff to pursue. By the levy the creditor is to have a fee simple in the lands, 01, in the words of the statute, as good a title as the debtor had. If the creditor be seised, he must in legal contemplation have the possession, and may maintain trespass against any person who shall invade his possession. The creditor ought also to have a remedy in law to recover seisin by an habere facias seisinam.. To have this remedy, he must be able to maintain a real action, declaring on his own seisin; for a purchaser in fee cannot declare on any seisin but his own, when his title is derived from a tenant in fee. The construction, therefore, which is put on our statutes, must extend to all cases where the lands are liable to the extent, or the creditor, not being seised by virtue of the levy, could have no remedy in law to recover his seisin. If it be said that the creditor, by virtue of the levy, may have a right of entry, and on entering may be seised, like the effect of an elegit, it should be remarked that the cases are dissimilar. The tenant by elegit has only a term, and claims only the possession, and his entry is on the possession ; the tenant of the land is therefore immediately on the liberate a wrongful possessor, and the creditor may enter peaceably without writ, and remove him from the possession . In a levy by execution in this case, the creditor claims a fee simple, and if he is not seised by virtue of the extent, the tenant remains seised, and his possession is rightful; and the right of entry, thus supposed in the creditor, must therefore be on a man lawfully seised, and havin0 consequently a rightful possession.

There seems, therefore, no reason for construing the words of the statute, directing the sheriff to deliver seisin and possession * to the creditor against their natural import. But [ * 539 ]' there are further provisions in our statutes on this subject, that remove all color of doubt. The same section last mentioned directs the sheriff, where the execution is levied bn the rents, to deliver seisin to the creditor, and, if the person in possession shall refuse to attorn, to turn him out. of possession, and to give the creditor the seisin and possession ; and the debtor or his assigns are empowered to redeem by paying to the creditor or the tenant in possession under him the remainder of the debt, which shall be due at the time of redemption. And by the statute of 1788, c. 51, $ 3, when an executor or administrator shall recover judgment for any sum of money, the execution on which shall be satisfied by an extent on real estate, the executor or administrator shall be seised and possessed of the real estate to the use of the persons interested in the judgment.

As to the inconvenience suggested, it can have weight in the construction of a statute but in doubtful cases. But the inconvenience does not arise from the construction which we give to oui statutes. The plaintiff has a right to nave his execution levied on lands of the debtor whether living or deceased, and on those lands only is the sheriff authorized to levy his execution. If he take other lands, he is a trespasser, and neither he nor the creditor can be protected by the execution. If the right owner, not being the debtor, be dispossessed, the act is tortious, and he may maintain trespass against the creditor and the sheriff, or he may bring his writ of entry against the creditor as a disseisor, or he may immediately reenter and defeat the disseisin . The inconvenience supposed may be the same in levying an execution on chattels. The sheriff may seize goods not the debtor’s, or in a copias ad satisfaciendum, he may arrest the wrong person. In all these cases he cannot justify under the execution, but must answer for the ties pass .

Our opinion is, that when an execution is regularly levied on lands liable by law to the extent, whoever may be the tenant, and duly returned and registered and- possessiomdelivered by the sheriff * the creditor, he is to be considered as in the actual seisin and possession, and may by virtue thereof either maintain a real action declaring on his own seisin, or he may maintain trespass [ * 540 ] against the tenant, who shall * continue his possession without the creditor’s consent, or may reenter on him after the levy is completed . And if this opinion be correct seisin delivered the creditor on such levy is a legal ouster of the tenant from the land.

We have considered this point more fully than seems necessary for the decision of this cause. It is stated in the case that the tenant, believing the land's liable to the extent, and, not choosing to be involved in a fruitless and expensive lawsuit with the creditor, did not resist his levy, but. suffered him to enter under it. If, therefore, the creditor was not ipso facto seised by virtue of the levy, yet if he had any right under the extent, it must be a right to enter peaceably, and acquire a seisin. A seisin thus lawfully acquired by a rightful and peaceable entry must amount unquestionably to an ouster of the tenant.

The defendant’s counsel appear to have very fully considered the whole case ; and they have argued that the lands in question were not liable by law to the extent. If this argument be well founded r the defendant must have judgment; for the ouster of the plaintiff by Boylston will not be lawful, but a disseisin, and so no breach of the defendant’s warranty.

The argument was supported on two grounds; one was, that the statute authorizing the levy of executions on the lands of persons deceased, gives the right of redemption to executors, administrators and heirs, without including devisees or the assigns of heirs or devisees. And that in the present case the devisee had, for a valuable consideration, bona fide aliened the lands in fee. And if the lands are still liable to an extent to satisfy the debts of the deceased, they will always remain liable, which would be a general inconvenience; for no man would ever venture to purchase of an heir or devisee, or of their assigns.

The other ground was, that the executor of Moses Gill, who was the residuary legatee, and under whom the plaintiff claimed, had given bond with sureties to the judge of probate for the payment of all the deceased’s debts, and of the legacies he had bequeathed, and that by virtue of this bond the lien on the testator’s real estate was discharged.

It is the duty of the Court so to construe the statute that it may have a reasonable effect, agreeably to the intent of the * legislature. Immediately on the death of the testator, [ * 541 ] the devisee may be seised of the land devised, and if it be not liable for the debts of the testator in his hands, the statute would be nugatory in its application to testate estates; and as heirs expressly have a right to redeem, it is admitted that lands in their hands may be taken in execution. But no good reason can be assigned why devisees, whose estates are derived from the bounty of the testator, should be favored rather than heirs, who hold by operation of law.

With respect to the assignees of heirs and devisees, it may be observed that by the statute of 1788, c. 66, § 2, no action can be maintained against an executor or administrator by a creditor, to recover his debt due from the deceased until a year after his death; and in that time an heir or devisee can easily learn whether there be a deficiency of personal assets, and can bona fide aliene the lands he claims from the deceased. If such alienation was to discharge the lien on the lands, the statute would be rendered useless, whether the deceased left a will or died intestate. And certainly the statute ought to have a construction as beneficial to creditors as a devise to executors of an authority to sell lands for the payment of debts ; and in that case it is held that a descent from, or an alienatian by devisees does not take from executors the power to sell the lands .

A bona fide alienation for valuable consideration by a devisee has been compared, by the counsel for the defendant, to a case where a fraudulent purchaser has afterwards bona fide and for valuable consideration conveyed; in which case the last purchaser shall hold the land purged of the fraud . But the two cases are not alike in principle, for the consideration money received by the devisee cannot be personal assets in the hands of the executor.

Whether the devisee, or the assigns of the heir or devisee, can redeem, it is not necessary now to determine. Perhaps, on examination, it will be found that every tenant of the land lawfully holding under the deceased may, within the equity of the act, redeem, on the terms of paying the debt, for which the lands were taken. But on this point we give no opinion.

[ * 542 ] * As to the inconvenience resulting from a perpetual lien on the deceased’s lands for the benefit of his creditors, we are not disposed to say that the lien is perpetual. Certainly it ought tó continue a reasonable time, and should not be defeated but by the neglect or loches of a creditor. What shall be deemed a reasonable time, has not, that we know of, been determined. In the case of Lee vs. Gallison, in Essex, Gallison, a legatee, had lain by for more than twenty years, and the lands had descended to the heirs of a devisee. Under the circumstances of that case, the Court held that the lands were discharged of the lien. If a rule were now to be established, perhaps, in analogy to various other maxims of law, twenty years of negligence in a creditor might be a period of time which should liberate the lands from the lien created by the statute. But of this point also we give no opinion .

As to the inconvenience suggested, that the lands, when once extended on, and redeemed, may be afterwards taken in execution by another creditor, the inconvenience does not exist. For when the lands have been once legally appropriated for the payment of the deceased’s debts, they are forever after discharged, on the same principle that his goods and chattels, when sold upon fieri facias, cease to be assets in the hands of his executor or administrator.

The last objection that remains to be considered, is grounded on the probate bond given in this case for the payment of debts and legacies. And if the giving of this bond is in law a discharge of the testator’s lands from the lien imposed upon them by the statute, the defendant must recover.

But we are all of opinion that this bond is no discharge of the lien. Before the provincial statute of 1 & 2 Ann. c. 5, all execu tors were bound to inventory and account for the testator’s estate This was necessary to furnish the creditors and legatees with evidence to charge them with waste, if any assets were embezzled or unaccounted for. When the legacies are specific, or to be ascertained without inventory or account, and the executor be the residuary legatee, if the legatees and creditors can be secured, there can be no occasion for an inventory or account. In this case that statute relieves the executor from this duty, on his giving bond with sureties to * the judge of probate for the [ * 543 ] payment of the debts and legacies. On this principle also the 17th section of the statute of 1784, February 6, c. 24, was passed. This section has no application to the lien on the testator’s estate, real or personal: This lien remains in full force, and the benefit to be derived by a creditor or legatee from the bond is merely cumulative.

Upon the best consideration we have been able to give this case, we are all satisfied that the levy by Boylston was a legal ouster of the plaintiff, and breach of the defendant’s covenant of warranty, and that the plaintiff must recover his damages sustained by that breach.

After this opinion was delivered, the parties consented that the Court should assess the damages, agreeing that the true value of the land at the time of the conveyance from Brazier to Gore was 9000 dollars, and at the time of the ouster 15,000 dollars. And now, at this term, the Chief Justice, and Sewall and Parker, Justices, being present, the following decision of the Court, on the damages to be assessed, was pronounced by

Parsons, C. J.

The Court have considered of the rule by which damages in this case are to be assessed. In a personal action of covenant broken, damages are demanded for the breach of a warranty by an ouster of the purchaser, by a right or title paramount. The plaintiff insists on the value of the lands at the time of the breach; and the defendant contends that the value when conveyed is the measure of the damages.

By the ancient common law the remedy on a warranty was by voucher or warrantia chartre, and the recompense recovered in those suits was other lands to the value at the time the warranty was made. This was the general rule; but when the warrantor, on being vouched, entered into the warranty generally, he was bound to render other lands to the value of the lands lost at the time he entered into the warranty . In valuing the land lost, when the vouchee entered into the warranty specially, no regard was had to any improvements made by the tenant, as by erecting edifices, or turning pasture into arable land ; nor was the discovery [ * 544 ] *of a mine in the land lost, after the warranty was made, but then not known, considered in ascertaining the value of the land to be recovered in recompense.

An effect originating in this feudal principle may be discovered in this state in the assignment of dower against a purchaser. When the husband alienes with warranty during the coverture, and after dies, his widow shall not be entitled to the benefits of the improvements made by the purchaser, because he could not recover their value in other lands against the heir on the warranty of the husband . This rule is now supported in this state on principles of public policy, that purchasers may not be discouraged from improving their lands. If the lands have greatly risen in value, not from any improvements made upon them, nor from the discovery of any new sources of profit, but from extrinsic causes, as the increase of commerce or population, it may be a question whether, on the extendi ad ralentiam, the lands to be recovered in recompense would be valued at the increased price, so that the quantity might be proporfionably reduced. This is here a question of mere curiosity, unless it should be considered as relating to the lands to be assigned to the widow for her dower. If the husband during the coverture had aliened a real estate in a commercial town, and at his death the rents had trebled from various causes unconnected with any improvements of the estate, and the widow should then sue for her dower, perhaps it would be difficult for the purchaser to maintain that one ninth part only, and not one third part, should be assigned to her.

This remedy, to recover a recompense in other lands to tne value, existed very anciently, when the principal consideration received on the alienation was the services to be performed by the tenant. The remedy might then be proper, as any improvements of the land thus paid for in services must redound wholly to the advantage of the tenant, as his services to the lord remained the same. But when lands were aliened for money when improve ments in agriculture became an important object of public policy, and when the alienor might have no other lands to render a recompense in value, it became expedient that another remedy for the purchaser *on eviction should be allowed. And [ * 545 ] it is certain that, before the emigration of our ancestors, the tenant, on being lawfully ousted by a title paramount, might maintain a personal action of covenant broken on a real covenant of warran y .

This remedy was adopted by our ancestors as early as remedies for evictions of land sold with warranty were necessary. And in a personal action of covenant broken, it is a general rule of law, that such pecuniary damages be recovered, as shall be an adequate compensation for the injury sustained, by the breach of the covenant. When this action was admitted to recover satisfaction for the breach of a real covenant of warranty, the same measure of damages was adopted, as is used in other personal actions of covenant broken, which does not vary in principle from the rule on voucher, where the vouchee entered generally into the warranty. And the general practice has been to give a sum of money in damages equal to the value of the land at the time of the eviction, which was a breach of the covenant, and sometimes with interest on that sum, according to the circumstances of the case. In the first settlement of the country, the value of the land consisted chiefly in the improvements made by the tenants; and if on ouster the warranty would not secure to him the value of his improvements, he could derive little benefit from it.

In the case of L&prilette vs. Rand, in Suffolk, it was ruled by the Court that the plaintiff should recover the value at the time of the eviction, which greatly exceeded the value of the land when it was sold by the defendant. And in a case in Essex, the name of which is not recollected, the rule for assessing the damages was reserved by the parties, on a case stated, for the consideration of the Court, who determined that the law was settled that the plaintiff should recover in money the value at the time of the eviction. And in a late case where Bosson, who held under the commonwealth, was evicted by Martin, the lands were appraised at their value at the time of the eviction, which value was paid to Bosson by order of the legislature.

* The Court are of opinion, conformably to the prin- [ * 546 : ciples of law applied to personal actions of covenant broken, to the ancient usages of the state and to the decisions of our predecessors, supported by the practice of the legislature, tho the plaintiff m this action ought to recover in damages the value of the estate at the time of the eviction. And as the parties have agreed that the true value at that time was 15,000 dollars, the plaintiff must have judgment for that sum.

As the plaintiff admits that immediately on the eviction he paid that sum to Boylston, and received back the estate, and has been ever since in the receipt of the rents, he can have no claim for interest as a compensation for any intermediate loss of profits . 
      
       [ Wyman vs. Brigden, 4 Mass. 150.—Drinkwater vs. Drinkwater, 4 Mass. 354.-Bigelow vs. Jones, 4 Mass. 512.—Boyden vs. Carver, 4 Mass. 598.—Boylston vs. Carver, 4 Mass. 590.—Michell vs. Lunt, 4 Mass. 654.—Scott vs. Hancock & Al. 13 Mass. 162.—Ed.]
     
      
       3 Term Rep. 295.
     
      
      
        [Burnell vs. Burnell, 9 Mass. 96. 11 Mass. 163.—Tate vs. Anderson, 9 Mass. 92.—Ed.]
     
      
      
        [Commonwealth vs. Kennard Al. 8 Pick. 133.—Ed.]
     
      
      
        [Barrett vs. Porter, 14 Mass. 143.—Proctor vs. Newhall, 17 Mass. 81.—Langdon vs. Potter & Al. ante, 215.—Wyman vs. Brigden, 4 Mass. 150.—Bigelow vs. Jones, 4 Mass. 512.—Ed.]
     
      
      
        [Drinkwater vs. Drinkwater, 4 Mass. 354.—Ed.]
     
      
      
        [State of Connecticut vs. Bradish, 14 Mass. 296.—Trul. vs. Bigelow, 16 Mass 406.-Ed.]
     
      
      _ (12) [Wyman vs. Brigden, 4 Mass. 150.—Ed.]
     
      
      
        Vin. Abr. Title Voucher, T. pl. 1, 2,3.—Ibid. Title Warranty, K. pl. 11.
     
      
      
        [Ayer vs. Spring, 10 Mass. 80.—Catlin vs. Ware, 9 Mass. 218.—Well vs. Townsend, 1 Pick. 21.—Ayer vs. Spring, 9 Mass 8, and note to 3d edition.—Thomson vs Morrow, 3 Serg. & R. 289, 3 Mason, R. 375.—Dorchester vs. Coventry, 11 Johns. 510 —Wright vs. Jennings, 1 Baily, R. 281.—4 Kent. Com. 282.—Ed]
     
      
       1 Brownl. 21.—2 Brownl 164,165.
     
      
      
        [Bigelow vs. Jones, 4 Mass. 512.—Chapell vs. Bull, 17 Mass. 213.—Administrators of Wallis vs. Administrator of Cook, 1 M’Cord. R. 467.—Ela vs. Card & Al 2 N. Hamp. R. 175.—Mitchel vs. Hazen, 4 Conn. 496.—Bonta vs. Miller, 1 Little, 250.— Marshall’s Heirs vs. M’Connall's Heirs, 1 Little, 419.—Cummins vs. Kennedy, 3 Little, 125.—Stevenson & Al. vs. Harrison, 3 Little, 174.—Caswell vs. Wendell, 4 Mass. 108.— Dimmick vs. Lockwood, 11 Wend. 149.—Stubbs vs. Page, 2 Greenl. 378.—Bond vs. Qualtlebaum, 1 M'Cord, 586.—Stewart vs. Drake, 4 Halsted, 139.—Marston vs. Hobbs 9 Mass. 433.—Bickford vs. Page. 2 Mass. R. 455.—Ed.]
     