
    James F Baldwin versus Ruggles Whiting, Samuel Spear, and Others.
    The extent of an execution, on a part of the interest of a joint-tenant or tenant in common of land, by metes and bounds, is void as agamst the co-tenants of the execution debtor, f
    t See Atkins vs. Bean et al., 14 Mass. Rep. 403.
    
      This was a writ of entry, in which the said Baldwin demanded possession of three undivided fourth parts of a lot of land in Boston. The action was submitted to the decision of the Court upon the following facts agreed by the parties.
    On the 25th of September, 1809, the demandant attached the estate of one Daniel Pepoon in the flats lying between Long wharf and Lewis’s wharf so called ; and in April, 1810, he recovered judgment in the said action, and levied his execution on a part of Pepoon’s interest in the said flats, which levy was made in the following manner, namely ; “ Suffolk ss. May 29, 1810. We, the subscribers, having been appointed and sworn, according to law, faithfully and impartially to appraise such real estate as should be shown to us, to satisfy the within execution and all fees, have appraised and set out the following described estate ; being three undivided fourth parts of the following described lot of land, situate at the northerly part of said Boston, adjoining Lewis’s wharf so called, there measuring twenty-three feet,” &c. [describing the whole by specific boundaries], “ and all the privileges and appurtenances to the same belonging; and we do hereby appraise and set out the above-described estate, by the metes and bounds above-mentioned, in full satisfaction of this execution.”
    The piece of land thus levied upon is part of a large tract of flats, formerly owned in common by one Undrew * Dexter, jun., and one Thomas Lewis; the said .Dexter owning three undivided fourth parts, and the said Lewis one undivided fourth part thereof. At the time of the extent of the said execution, the said flats still remained in common and undivided ; the said fourth part thereof still belonging to the said Lewis, and the three undivided fourth parts thereof being in the possession of Whiting and Spear, two of the tenants in the present action ; the said Whiting claiming to hold twelve undivided twentieth parts of the whole of said flats, and the said Spear three undivided twentieth parts thereof (together making said three undivided fourth parts), by levies made on the same, by virtue of executions sued out on judgments by them severally recovered against the Berkshire Bank; and the said Whiting also claiming to hold the said three undivided fourth parts of said flats, by virtue of a deed from said Pepoon, dated January 27tb, 1810, but subject to a mortgage of the same premises, made by the said Pepoon to the Northampton Bank in November, 1809.
    Previous to the commencement of this action, the said Lewis conveyed to the present tenants and one Miel Wood, in different proportions, his undivided fourth part of said premises ; of which the tenants and the said Wood were in possession at the commencement of this action. Previous, also, to the commencement of the present action, the Northampton Bank brought an action against the said Whiting, founded on the said mortgage of Pepoon; in which they demanded the three undivided fourth parts of said flats ; and the said Whiting, after disclaiming all but his own interest therein, defended his right under the title by him acqu .red, by virtue of the levy of his execution against the Berkshire Bank; it being a question, whether the legal estate in the said flats was in said Pepoon, or in the said Bank. In that action the Court determined the said legal estate to be in said Pepoon. 
      
    
    Previous, likewise, to the commencement of this action, the tenants and the said Wood began to fill up the said * flats ; and that part claimed by the demandant was partially filled up, when notice was given by the demandant to the tenants to desist from so doing. But they proceeded and filled the same up, and they are now of more value than when the levy was made thereon.
    If, upon this statement, the Court should determine, that the levy of the demandant did not pass any estate to him, he was to become nonsuit, and the tenants to have judgment for their costs ; otherwise the demandant was to have judgment, &c.
    
      Bigelow, for the demandant.
    
      Hubbard, for the tenants.
    
      
       See this case, ante, vol. 12, page 104.
    
   Wilde, J.,

delivered the opinion of the Court. The demandant claims title, in this case, under a judgment, and execution thereon, in his favor, and against one Daniel Pepoon, who, at the time of the extent thereof, was interested, as tenant in common, in a large tract of land or flats in Boston, including the demanded premises, he being seized of three undivided fourth parts, and one Thomas Lewis being seized of the residue.

The demandant extended his execution on the whole of Pepoon’s interest in a part of said flats, setting out the same by metes and bounds ; and the general question is, whether this extent is good and sufficient to pass Pepoon’s interest, or is void as against the tenants.

It appears, that, after the said execution was thus extended, and before the commencement of the present action, Lewis conveyed to the tenants and one Miel Wood his fourth part of the whole flats, which they now hold, in different proportions, in common and undivided ; and that, in January, 1810, after the demandant’s attachment, Whiting, one of the tenants, purchased of said Pepoon the whole of his interest in the said flats, and received a deed thereof, purporting to be subject only to a mortgage of the same, made by him to the Northampton Bank.

In the case of Bartlet vs. Harlow, it was decided, that a conveyance by a joint-tenant, or tenant in common, * of a part of the land held in common, to a stranger, can have no legal operation, to the prejudice of a co-tenant; and it seems difficult to raise a doubt in this case, without impeaching the principles upon which that cause was determined. In the argument, a fact has been noticed, which is supposed to distinguish that case from the one at bar, namely, that the proceedings under the execution hero are attempted to be avoided by the assignees of Lewis, the co-tenants of Pepoon, at the time the execution was extended ; whereas, in the other case, the respondent was the original co-tenant.

But we have not been able to perceive any good reason to support the argument founded on this distinction. All the inconveniences, which may be supposed to arise from such an extent in relation to the original co-tenant, are equally applicable to the situation of his assignees. By the assignment, all the interest, rights, and privileges of the co-tenant pass to his assignees ; and it is not necessary for him to make a previous entry on the land, to give validity to the assignment. The true ground, upon which the court went, in the case of Bartlet vs. Harlow, was, that a conveyance by a tenant in common of a part of the undivided land was void, excepting as against the party making the conveyance, or those claiming under him ; and, even in that case, that it was effectual only by the rules of estoppel. Now it would be hard to say, that, although privies and assignees of such a grantor may claim the benefit of an estoppel, to support a title not strictly legal, yet, that the lawful assignees of a co-tenant should not be allowed to protect themselves against the inconveniences resulting to them from such a conveyance. It seems to us, therefore, that the demandant’s title is defective, and that the tenants are not estopped to show the defect.

If the present action had been against Whiting alone, the facts stated might present for our consideration a question of more difficulty. If, in such case, he should set up his title under Pepoon, he would be estopped, according * to principles already noticed ; yet, perhaps, he might be well allowed to waive his claim under Pepoon, and defend himself undeit, the title derived from Lewis. But, as to this, the opinion of the Court cannot Le now required.

In the case of Varnum vs. Abbot & al., which has been cited for the demandant, as fortifying the ground taken by him, the title of the tenants was supported expressly by the rules of estoppel; and the general principles laid down in that case are in strict conformity with those advanced in Bartlet vs. Harlow. Those cases were not decided hastily. The points of law, therefore, on which they depended, must be now considered as definitively settled ; agreeablv to which the tenants in the case at bar are entitled to judgment.

Demandant nonsuit. 
      
       12 Mass Rep 348.
     
      
       12 Mass. Rep. 474.
     