
    Joseph Hammatt versus Thomas Bassett Junior.
    The return of an execution extended on land need not state that the appraisers went upon the land. Semblei
    
    If the appraisers certify, that having been chosen &c. to appraise and set off so much of the real estate &c. as should be shown to them, they have accordingly appraised and set off &c., it will be presumed that they went upon the land.
    It was agreed between a creditor and his debtor, that the debt should be paid in certain land of the debtor at a value to be fixed by appraisers, and that if either party should refuse to abide by the appraisement, such party should pay the expense of it. Before the appraisement was made the creditor privately attached other land, on which he afterwards extended his execution. Held, that his title was good against a grantee claiming under a deed made by the debtor after the attachment.
    Trespass quare clausum fregit. Plea, soil and freehold in the defendant.
    At the trial, before Putnam J., the defendant claimed under a deed from Thomas Bassett, dated June 5th, 1821. The plaintiff claimed under a levy of an execution against the same Thomas Bassett, pursuant to an attachment made on the 4th of June. The defendant objected to the levy, that it did not appear that the appraisers went upon the land, in order to ascertain its value. Their certificate was, “ We, the subscribers, having been duly chosen and sworn to appraise and set off so much of the real estate of said Thomas Bassett, as should be shown to us, &c., have accordingly appraised and set off &c. the following lots of land,” &c., describing the same by metes and bounds. A verdict was directed for the plaintiff, subject to the opinion of the Court.
    The cause was submitted to the decision of the Court at October term 1823, at Plymouth, without argument, and at the following May term their opinion was delivered by
    Parker C. J. The objection is, that it does not appear by the return of the sheriff or the certificate of the appraisers, that the latter entered upon the land before they made the appraisement. It has not been usual to state that fact in returns of this kind, and the statute certainly does not directly require that an entry upon the land should be made by the appraisers. They are to appraise and set off by metes and bounds such land as shall be shown to them ; and where this may be done without going upon the land, it would be idle to require that formality. Suppose, for instance, that a whole farm is to be appraised, the appraisers having the deeds before them, and being perfectly acquainted with the situation and value of the farm and all_ buildings upon it; or perhaps there are no buildings and no improvements, the land being unoccupied and wild ; in these cases' there would be no necessity for the appraisers to pass over the land. But if this be necessary, it should be presumed to have been done on the proceedings as they appear before us. The appraisers certify, that being sworn to appraise such land as should be shown them, they did appraise the land in question, and did set it off by metes and bounds. It is to be presumed that they went upon the land for this purpose. It is not stated as a fact that they did not, but only that it does not appear that they did. We think it sufficiently appears that they did all that the law requires. This being the only objection stated to the levy, and all other things necessary to give a title to the plaintiff having been done, judgment must be rendered according to the verdict.
    At this term it appeared, upon an amended report of the judge who tried the cause, that the defendant offered in evidence. an agreement, dated May 29th, 1821, between his grantor and the plaintiff, in which it was stipulated, that the debt due to the plaintiff from the grantor should be paid in certain parcels of real estate mentioned in the agreement, at a value to be détermined by three persons named as appraisers, and that if either of the parties should not abide by the appraisement, such party should pay the appraisers for their time. This evidence, together with the appraisement, which was made on the 5th of June, 1821, was rejected.
    
      L. Shaw and Holmes junior, for the defendant,
    said the question was, whether a deed to a third person knowing of this agreement and not knowing of the private attachment by the plaintiff, can be defeated by such attachment. The defendant purchased on the faith of an implied agreement on the part of the plaintiff, that until he should give notice that he would not abide by the appraisement, he would take no other measures to secure his debt. The private attachment was a fraudulent concealment, as it respects the defendant, and it shall not be allowed to prevail against his title. The defendant would have a remedy in a court of chancery, and the law in relation to fraud is the same in a court of law as in a court of equity. Foster v. Briggs, 3 Mass. R. 313 ; Eaton v. Lincoln, 13 Mass. R. 424 ; Ludlow v. Simond, 2 Caines’s Cas. in Err. 1 ; Rees v. Berrington, 2 Ves. jun. 540.
    
      W. Baylies and Spooner, for the plaintiff,
    cited Warden v. Adams, 15 Mass. R. 233.
    
      
       See Bond v. Bond, ante, 382 ; Pendleton v. Button, 3 Connect. R. 406, Tate v. Anderson, 9 Mass. R. 96 ; Bolt v. Burnell, 9 Mass R. 96, and 11 Mass. R. 163
    
   Parker C. J.

said the Court were of opinion that the evidence was rightly rejected as irrelevant. The land attached was probably different from that mentioned in the agreement, but this is immaterial; for the parties to the agreement c.ondered that nothing in it was to be obligatory, until the appraisement should be made, and if they should not agree to the appraisement, the party disagreeing was to pay the costs. We see nothing fraudulent in the plaintiff’s making the attachment.

Judgment according to the verdict.  