
    * Gillam Taylor versus David Townsend
    A mortgagee, after a recovery on a bill in equity by the mortgagor to redeem, and before possession taken under the judgment, may lawfully take down and carry away any buildings erected by him on the land mortgaged, the materials of which were his own, and not so connected with the soil, as that they cannot be removed without prejudice to it.
    When land of a debtor is set off on execution, to which no access can be bad, but over other lands of the debtor, the sheriff and appraisers may set off to the creditor a right of passage over such other lands, either separately or jointly with the debtor.
    This action was trespass. The declaration contained two counts. The first was for breaking and entering the plaintiff’s close in Boston, pulling down, destroying, and carrying away two wooden buildings ; the second count was for breaking down the plaintiff’s fence. The action was tried upon the general issue, before Parker, J., November term, 1810, and a verdict taken for the plantiff, subject to the opinion of the Court upon the following facts reported by the judge who sat at the trial.
    On the day mentioned in the first count of the plaintiff’s declaration, the defendant was in possession of the locus in quo, under a deed from one Weld, who had a deed of the same from the plain tiff1, Taylor, but had given a certain bond of defeasance, which is described in the bill in equity, heretofore prosecuted by Taylor against the said Weld and the present defendant, which process is referred to for the consideration of the Court in this case. 
    
    
      During the defendant’s possession under said deeds, he being the owner of the residue of the estate formerly Taylor’s, and described in the said bill in equity, by purchase of sundry creditors, who had extended executions on the same, he erected thereon the buildings mentioned in the declaration; the part of the said buildings, which w ere taken down by him, extending over the land which was claimed in equity, and finally recovered by the plaintiff. One of these buildings was a barn, and the other was a shed used as a blacksmith’s shop. There was no cellar under either of them, and no injury was done to the soil, other than what may have arisen from taking up two or three posts, on which the end of the barn rested.
    After judgment was rendered against Weld and Townsend upon the bill in equity, but before a writ of possession was issued thereon, and before any entry of Taylor under the judgment, the defendant took down the parts of the several buildings, which projected over the land recovered * against him ; and this is the trespass complained of in the first count.
    The plaintiff proved his second count, by showing that á fence, which he had erected across part of the premises, which he had recovered upon his bill in equity, and of which he had been put in possession by the writ of possession which issued on that process, had been thrown down by Townsend.
    
    The defence on this count was, that in the levying of the execu tian of Callahan vs. Taylor, and other executions against Taylor, the place where the fence stood was reserved and set off by the ap praisers, as a passage-way for the accommodation of the creditors in said executions; and that the defendant, who is the assignee of all those creditors, claiming a right to said passage-way, took down the fence, which had been erected across the same by the plaintiff, for the purpose of obstructing said passage-way.
    If the Court should be of opinion, upon the first count, that the defendant had not a lawful right to take down the buildings, under the circumstances before stated; and that, on the second count, the appraisers could not lawfully give an easement, or right of passageway, over the land of Taylor, to the creditors who extended their executions on other of his land, then judgment was to be entered on the verdict. — But if on both counts the defence above stated should, in the opinion of the Court, be sufficient, the verdict was to be set aside, and the plaintiff to become nonsuit. And the verdict was to be so amended, as to suit either of the counts, on which the Court might determine that the plaintiff was entitled to judgment.
    The action stood over upon the report of the judge to the last March term in this county, when it was argued by Whitman foi the plaintiff, and Townsend for the defendant.
    
      
      Townsend,
    
    as to the first count, insisted that the defendant was lawfully in possession of the locus in quo, until the plaintiff executed his writ of habere facias under his process * in equity. Being so in possession, he was not liable to an action of trespass vi et armis.
    
    As .to the second count, he said it would be futile, and a mockery of justice, to satisfy an execution by levying it on real estate, to which the creditor was to have no lawful access. The statute of 1783, c. 57, § 2, gives to the creditor in such case all the title which the debtor had in the land set off on execution. This, one would naturally suppose, included a right to get at the land over other land of the debtor. If no passage-way had been set off by the sheriff and appraisers, yet the law in this case would have given the creditors a right of way from necessity ; since the land was all at a distance from the street. Though authority to this purpose is not expressly given by the statute to appraisers, yet unless they have it by implication, the statute must in many cases be perfectly nugatory and inoperative ; and the law will imply what is necessary to give operation to so essential a statute as this for levying executions on lands of debtors. It may be added that the debtor has by law a right to redeem his land, by paying his just debt. If he neglects to do this, he is to be considered as consenting to the correctness of the extent, and then he has no cause of complaint; for volenti non fit injuria.
    
    
      Whitman,
    
    upon the first count, contended that the plaintiff, from the time of the rendition of judgment for possession, was in contemplation of law in full seisin and possession of the land recovered; so that he might maintain tresspass against any one, not excepting the tenant, who from that time wrongfully kept possession, for any forcible injury done the land. It was said by Sedgwick, J., in delivering the opinion of the Court in the case of M’Neil vs. Bright Al., 
      
      “ That a man, who has a judgment for possession, may enter without a writ, is common learning, and indeed is not denied. And why should the commonwealth, which cannot be disseised, the whole people, require the aid of an officer to give them actual possession, * when it is not necessary in the case of an individual? The highest evidence of title, that can exist, is the solemn judgment of a court. When this judgment says that the demanded premises, which were the property of A. M., have been forfeited by him, and have escheated, enured and accrued to the government, if this be not evidence that his title was trans•ferred to the government, we must abandon the idea of the absolute verity of judgments.” — If a recoveror dies, after judgment, and before his writ of seisin is executed, his heirs are not disseised by the continuance of the tenant on the land. The plaintiff had sufficient possession under his judgment to entitle him to his action of trespass for the wrong done him.
    That the defendant, in taking away the buildings mentioned in the declaration, did a wrong to the plaintiff, is proved by the recovery itself. The defendant had wrongfully kept possession from the plaintiff. By the adjustment made in the equitable proceedings the defendant had been allowed the expense of erecting these buildings, and by taking them away afterwards, he has received that allowance for no consideration at. all. In other words, he has thp value of the buildings, and also the buildings themselves. But allowing he might take away buildings erected by himself, there is no pretence that in doing this he had a right to subvert the soil itself. It was his folly so to connect the buildings with the land, that he could not remove them, without committing a trespass.
    Upon the question arising on the second count, the statute of 1783, c. 57, under which alone real estate may be taken in execution, expressly directs that the officer shall set out the estate by metes and bounds. If the law would give the creditor the privilege of a way as a necessary easement, this does not answer the objection, for it does not prove the authority of the sheriff or the appraisers to set it off. They may give a much greater easement than the law would deem necessary. Bu,t it was the creditors folly to extend on land, to which he could have no access.
    * It may be, and probably it generally is, done with a view to make the extent as inconvenient as possible to the debtor, and thus compel him to sell the remainder under its value.
    
      
       See 5 Mass. Rep. 169.
    
    
      
       4 Mass. Rep. 300.
    
   The action was continued for advisement after the argument, and at this term the judgment of the Court was pronounced by

Parker, J.

This action stood over from the last law term in this county, not on account of any difficulty in deciding it, but because the whole time of the Court was occupied in a multitude of more important questions, which were then before them.

We are of opinion that, upon the facts reported, the action, as far as it respects the first count, is not maintained. It is well settled that none can maintain an action of trespass quctre clausum fregit, but he who has possession in fact of the land. Thus one who is disseised can maintain trespass for no act subsequent to that which ousted him from the premises, until he reenters, and then he may sue for all the intermediate acts of trespass. Thus also one who has leased his lands for years, or even at will, cannot maintain trespass against a stranger, for any injury to the possession, while in the actual occupation of his tenant.

Now in the case at bar, Townsend was not only in possession, but was lawfully so, and that under the plaintiff himself, until the judgment of the Court against him. And when the act complained of was done, he had not been amoved, nor had he released, or otherwise surrendered his possession. It is impossible therefore to consider him a trespasser; and if the act done by him was wrongful, the proper remedy is by action in the nature of waste, considering him a tenant at will after the rendition of the judgment, for an injury done to the reversion.

But we apprehend there is another good ground of defence on the facts reported; and that is, that until an execution of the decree of the Court, he had a right to take * down and carry away any buildings erected by him, the materials of which were his own, which were not properly fixtures, or so connected with the soil as that they could not be removed without prejudice to it.

However rigidly the rights of landlords against their tenants may have been construed in ancient times, it is now settled, that in favor of trade, manufactures, and business, buildings erected for those objects may be carried away by those, whose estate is determined ; and Lord Mansfield, in the case of Lawton vs. Salmon, adopts the common sense doctrine, that improvements made by the tenant during his term may be removed by him, if he does not thereby prejudice the estate of his landlord. ■ It is enough for the tenant to say, “ I leave you the land as I found it.” — If this doctrine is advanced in the case of a tenant, who either knows the duration of his own term, or, if a tenant at will, who can abandon the soil when he chooses, and therefore may be said to incur expense by erecting buildings, &c., in his own wrong, a fortiori, it ought to apply to one who has held the estate for many years under a conveyance from the owner, without any expectation that his estate would be defeated by the performance of a condition attached to it; which was the case of the present defendant. — On the first count, therefore, we decide that the defendant is not liable.

On the second count, the facts to be considered are these: — that Townsend held a tenement under certain executions against Taylor, which had been regularly obtained on judgments recovered by certain of his creditors, and ,been duly levied on the tenements, which were afterwards legally transferred to Townsend. The fence taken down by Townsend, which is the act complained of in the second count, was placed by Taylor across a certain part of his land, over which the appraisers had, by the return of their doings in levying the executions, given a right of way to the several creditors, whose executions had been satisfied out of the tenements.

*The action is brought for the destruction of this fence, upon the idea that nothing can be transferred to creditors, of the debtor’s real estate, by the levy of executions, except what is and can be described by metes and bounds, and that the appraisers are not authorized by law to set off an easement, or mere right of passage, and that the creditor can make no title under such levy.

It is certain there is no express authority given by the statute to the sheriff, to cause a mere easement or right of passage to be set off in satisfaction of an execution; nor would a levy upon such an incorporeal right be good, standing by itself; for it is nothing, except in relation to some actual, corporeal property, of which it is a mere incident or quality.

But we are all of opinion, that the power of separating to the creditor’s use, or giving to him, in common with the debtor, the right of passing over land of the debtor not set off, in order that he may have access to the other land of the debtor which is set off, is essen tial to the execution of the statute, according to the intention of the legislature. Cases may often occur, in which, if this power does not exist, the estate levied on may be of no value to the creditor ; unless he should have by law away of necessity over other lands of the debtor; and indeed the very principle, that when a man has no other way from his land to the streets or public ways, he shall have a way over his neighbor’s land from necessity, is sufficient to show an authority in the sheriff and appraisers to give such a privilege, as appurtenant to the land they may set off.

It may be for the convenience of a debtor, that the back part of his land and tenements be set off to his creditor, leaving'him the front, in which he may continue to carry on his business. Now, to refuse to the sheriff and appraisers the power to give a right of passage over land occupied as a yard by the debtor, would be tc oblige creditors in all cases to levy upon that part of the debtor’s real estate, * the loss of which would most injure him ; and perhaps in most instances would deprive him of the power of redeeming.

It sometimes happens that the chambers of a house are sufficient to satisfy an execution, sometimes the lower rooms and cellar ; now, it is absurd to suppose that these may be taken and set off to the creditor, and yet that no passage through the entry and staircase can be given. The power of setting off the estate comprehends the power of giving access to it; for without the latter the former could not be used, and so could not be a subject of appraisement, being of no value.

Undoubtedly the appraisers should consult the interest of the debtor, in establishing the right of ingress and egress to and from his land set off to his creditor, and should confine themselves to what may be necessary for the use and occupation of the property ; and whenever they do find it necessary to give such a privilege, if it should be inconvenient to the debtor, his inducement to discharge his debt, and relieve his land, will be increased.

We are all of opinion, that upon this count also the plaintiff has failed, and that the verdict must be set aside.

Plaintiff nonsuit. 
      
      
        Com. Dig. Trespass, B. C.
     
      
      1 Johns. Rep. 511, where the cases to this point are cited. (a) [See note to Starr M. vs. Jackson, 11 Mass. Rep. 527. — Ed.]
     
      
      
        Bull, N. P 34.
     
      
       1 H. Black. 259, in notes.
      
     
      
       [Vide Gaffield vs. Hapgood, 17 Pick. 192, and cases cited in the argument. — Ed.]
     