
    Samuel Foster versus Philip Briggs.
    An execution levied on Hopkinton lands must be recorded in the registry «Í deeds for the county of Middlesex, within three months from the levy.
    Ejectment for certain lands in Hopkinton, in this county, belonging to the Hopkins’ fund, so called. At the last October term a verdict was found for the plaintiff, on a case stated by the parties, whereby it was agreed, that, if on those facts the Court should be of opinion that the verdict ought to have been found for the plaintiff, judgment should be entered accordingly, but otherwise that the verdict should be set aside, and a verdict entered for the defendant, tnd judgment accordingly.
    By the facts in the case stated, it appeared that the demanded premises were, on the 29th of June, A.D. 1782, mortgaged for their full value to one Walter M’Farland, by * one [ * 314 ] John Freeland. On the tenth of January, A. D. 1792, the plaintiff sued out a writ of attachment against Freeland for a just debt, on which writ he caused the demanded premises to be attached on the 12th of January aforesaid. At the Court of Com mon Pleas, March, 1792, he recovered judgment and sued out a writ of execution, which was duly extended on the demanden premises; which execution has been duly recorded in the registry of deeds for the Hopkinton lands, but has never been recorded in the registry of deeds for the county of Middlesex.
    
    On the 16th of January, 1792, the plaintiff was present and assisting at a negotiation between the said Freeland and M’Farland, and one Lemuel Goddard, at which M’Farland cancelled the said mortgage upon payment by Goddard of part of the money due upon it, and upon Freeland’s mortgaging anew to M’Farland other lands which were also attached on the plaintiff’s writ for the balance remaining due to him. Freeland then conveyed the demanded premises with other lands to Goddard in fee, under whom the defendant, Briggs, claims. All these conveyances were completed and delivered to the register for the Hopkinton lands, who was present during the transaction, to prevent any intermediate encumbrances or conveyances. The plaintiff, being present also the whole time, aided the parties in casting the sums due from the respective parties, and did not disclose to either of them his attachment made as aforesaid four days preceding. Afterwards, and before recovering his judgment aforesaid, the plaintiff informed M’Farland of the attachment, and expressed his intention to levy his execution on the lands last mortgaged to him as above; but on M’Farland’s threatening to oppose him, and to disclose his, the plaintiff’s, privity to the transactions aforesaid, he consented that M’Farland should have the benefit of his said mortgage.
    S'. P. P. Fay, for the plaintiff,
    cited the provincial act of 15 G. 2 , by which the trustees of the Hopkinton lands are authorized to appoint a register for those lands; and it is enacted [ * 315 ] that after a day therein mentioned, “ no conveyance *of those lands shall be good to hold the same against any other persons but the grantors and their heirs only, unless the deed thereof be recorded by the register aforesaid. And no purchaser shall be obliged to record any of these deeds in the records of the county of Middlesex henceforward.”
    
      Bigelow, for the defendant,
    relied upon the statute of 1783, c. 57, <§> 2, by which all executions levied on real estates are required to be recorded in the registry of deeds, in the county where the land lies, within three months from such levy.
    As to the plaintiff’s fraud exposed in the case, he cited Lord 
      Mansfield’s observations in the case of Worseley & Al. vs. Demattos and Slader 
      .
    
      
       Vide 2 Mass. Gen. Laws, 1023.
    
    
      
       1 Burr. 474
    
   Parsons, C. J.

From the facts stated in this case, two questions arise.

1. Whether the plaintiff’s execution, recorded in the registry for Hoplcinton lands, and not in the county registry, can give him any title to the lands demanded, which, it appears from the declaration, are situate in Hoplcinton; for he has no title but what he derives under that execution.

2. When his attachment was made, the lands were encumbered to their full value; and four days after the attachment, the plaintiff assisted in the transaction stated in the case, by which the prior encumbrance was removed, and the demanded premises, bona fide and for a valuable consideration, sold by the judgment debtor to Goddard (whose estate the present defendant has), as free of encumbrances ; whether at this time his not disclosing his attachment, but assisting in the transaction, was such a fraud upon Goddard,, as shall, at law, defeat his attachment.

As to the first question. By the general statute of 1783, c. 57, March 17, that the judgment creditor may have a good title to lands on which his execution has been extended, the execution must, with the doings thereon, be returned into the clerk’s office, and before or after such return, and within three months, be recorded in the registry of deeds in the county where the lands lay. • The plaintiff’s execution not * being thus recorded, he [ * 316 ] can derive no title under it by virtue of this statute. But as the lands lay in Hoplcinton, he relies on a provincial statute passed the 15 G. 2, c. 8. This statute provides that a register shall be appointed to record all conveyances before that made by the trustees, with the mesne conveyances down to the tenants .then in possession; and further, that after the 26th of April then next, no conveyance of those lands shall be good to hold the same against any other persons but the grantors or their heirs, unless the deed thereof be recorded by the register aforesaid. The plaintiff contends that a title by execution is a title by conveyance, and is within the equity of this statute.

That an extent of an execution on land is a conveyance of land, there can be no doubt; but is it such a conveyance as is manifestly within the intent of this statute ? Certainly it is not. The conveyances here intended are conveyances by deed; the statute speaks of the grantors and their heirs, and provides that they only shall be \ound by the conveyance, unless the deed be recorded. And, what seems to place this construction beyond doubt, no time is limited for recording these conveyances; thus, if executions are included, they may be recorded at any time, and yet executions levied on other lands must be recorded within three months from the levy. It is therefore very clear to my mind, upon the first question, that the plaintiff has no title to the demanded premises; that the verdict must be set aside, and a general verdict be entered for the defendant.

As to the second question, I am satisfied that, were we sitting here as a Court of Chancery, with all the equitable powers of that court, we ought to set aside the plaintiff’s attachment, on account of his fraudulent concealment of it disclosed in the case. But as the justice of this case can be attained by the determination of the first question, it is not necessary to decide this point, when sitting as a court of law.

The other judges concurring in the opinion of the chief justice, the verdict was set aside, and a verdict for the defendant entered.  