
    Den ex dem. Green and Green against Steelman and others.
    A purchaser of lands at Sheriff's sale, has not, previous to the making and delivery to him of the Sheriff’s deed, for said lands, such an interest therein as can be levied upon and sold by virtue of a fieri facias de bonis et terris.
    
    A Sheriff’s deed takes full effect only from the time of delivery, and does not relate back to the time of sale, so as to sustain an intermediate sale and conveyance by the Sheriff, of the lands therein mentioned.
    A levy may be made on lands acquired after the date of the judgment, of conveyed to other persons before the date of the execution. Per Drake justice.
    
      L. Q. C. Elmer, for plaintiff.
    
      Sloan and Armstrong, for defendant.
   Ewing, C. J.

In this action of ejectment, both parties claim under Samuel Clement, who as both acknowledge, became seized of the premises in question, on the 20th day of June, 1818. The plaintiff shews a conveyance in fee simple, from Samuel Clement and wife, to David Jones, dated July 22d, 1818, and a deed of mortgage, dated 24th February, 1819, from David Jones to his lessors; and thus establishes a -prima facie title.

The defendants deduce title in the following manner: Judgment on bond and warrant of attorney was entered up on the 21st of September, 1816, in the Court of Common Eleas of the county of Gloucester, in favor of Joseph C. Swett, against Samuel Clement. In June term, 1820, this judgment was revived upon scire facias post annum et diem, and a writ oí fieri facias de bonis et terms was issued thereon, returnable to the ensuing term of October, was delivered to the sheriff on the 26th day of June, 1820, and was levied upon the premises in question. On the 21st August, 1821, the sheriff made sale of the premises to Joseph O. Swett, the plaintiff in the execution, and executed and.delivered a deed to him, on the 28th of November, 1826, after the commencement of this action. A few days after the above mentioned sale was made by the sheriff, a judgment was entered up in the same court, on the 7th September, 1821, against the said Joseph O. Swett, in favor of ¥m. Nudderow, and an execution of fieri facias de bonis et terms was delivered to the sheriff, on the 25th Sept., 1821. By virtue of this execution, the sheriff made sale of the premises in question, on the 6th day of August, 1825, and executed and delivered a deed on .the 22d day of the same month, to Thomas Nedman and David Vanderveer, under whom the defendants claim by apt conveyances.

From this view of the case, it is seen that the defendants claim title through a sale and conveyance of the premises by the sheriff, under a judgment and execution against Swett. When this execution was delivered to the sheriff, and when the sale and conveyance were made by him, the only title; if any, which Swett had to the premises, was, that the premises had boon struck off to him at sheriff’s sale ; the deed to him by the sheriff not having been made until long after-wards.

The defendants then have no valid title to the premises, unless the deed from the sheriff' to Swett, when executed, relates back to the time of the sale, and takes full effect from that period, or unless after the, sale and prior to the deed, Swett had such an interest in the premises, as was liable to be seized and sold under execution.

Iu the examination of the first of these topics, it is not necessary to enquire, whether there be any purpose for which the deed might relate to the sale, we are to ascertain whether it may so relate, as to sustain the intermediate sale and conveyance by the sheriff; and to such extent only, are my remarks intended and my conclusion to reach.

The language of the legislature, in the 12th section of the act making lauds liable to be sold for the payment of debts, leaves little scope for doubt or difficulty on this head. The sheriff shall make to the purchaser, “ as good and sufficient a deed or conveyance for the lands, tenements, hereditaments and real estate so sold, as the person against whom the said writ or writs of execution wore issued, might or could have made for the same, at, or before the time of rendering judgment against him or her; which deed of conveyance shall transfer to, or vest in the said purchaser as good and perfect an estate to the premises therein mentioned, as the person against whom the said writ or writs of execution were issued, was seized of, or entitled to, at, or before the said judgment; and as fully to all intents and purposes, as if such person had sold the said lands, tenements, hereditaments and real estate to such purchaser, and had received the consideration money, and signed, sealed and delivered a deed for the same.” By this provision it is seen, the transfer of the title and estate is to be made by the deed; the deed is to vest the estate iu the purchaser. Neither the sale -by the sheriff, nor the payment of the purchase money are contemplated by the legislature, as having any influence in passing the estate. It seems then, an obvious and very safe conclusion that until the act is done, which the legislature have prescribed as the mode whereby the.estate is to be transferred, a transfer is not made, and that the estate cannot vest at an earlier period than the act done whereby it is to be.vested, in the absence of any expression in the statute, which seems in any wise designed to give to the deed an earlier operation or efficacy. Had the legislature intended an earlier operation, we might expect to have found a provision that the deed should, from the time of the sale, or from the payment of the purchase money, vest the estate in the purchaser. But as nothing of the kind is contained in the statute, as no retrospective operation is in terms given to the deed, as the deed is to vest the estate, the just conclusion is, that'the legislature intended that the estate should vest at the execution and delivery of the deed and not earlier, at which time, on general principles, a deed takes effect.

In giving this construction to the statute which seems so plainly to have been designed, there is no collision with any of the principles of common law, in respect to the relation of deeds ; on the contrary, it is 'in conformity with them ; and such conformity ought always to be weighed in the construction of a statute. If the statute affords a rule, from its transcendent force it must prevail; otherwise, the rule is to be sought in the doctrines of the common law.

There is,” says Lord Mansfield, in Vaughan v. Atkins, 5 Burr. 2764, no' rule better founded in law, reason and convenience, .than this, that all the several parts and ceremonies necessary to complete a conveyance, shall be taken together as one act, and operate from the substantial part by relation. The formal effectuates the substantial part, and therefore must relate to it.” What then in this case is the substantial part ? The purpose to be effected is the transfer of the egtate. Now the legislature, after providing that notice of the sale shall be given; that a public vendue shall be made, and the lands struck off to the highest bidder, have declared that the transfer shall be made bv the deed. It necessarily follows then, that in making the transfer, the execution and delivery of the deed, is the substantial part. From that part then, according to Lord Mansfield, the whole must operate. To that act the rest must relateViner, lays down the rule with respect to relation, in somewhat different language. “ Where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other acts shall have relation.” 18 Viner, tit. Relation, s. 8. It would not perhaps be unprofitable to enquire whether, when the legislature have declared, that the conveyance and estate shall be made by the deed, the antecedent sale, or striking off by the sheriff, comes within the scope, or is one of the “ divers acts concurrent,” meant in this passage. But taking it to bo so, it is to be presumed the rule is laid down by Lord Mansfield, in a more clear but not in a different manner, and that the same idea should be attached to the term, original, as to his, more explicit word, substantial, and this conclusion will seem the more sound when it shall appear in the, sequel, that if Viner means by the original, the first act in order of time, he is contradicted by adjudged cases reported in the English books. And those cases also establish another principle, of vital importance in its application to the case before us. Where the person making the conveyance has an estate in the lands, relation may be had to the substantial part of the conveyance ; but where it is made by one, having no estate, but a power or authority only, the estate does not pass until all the requisite acts are completed, and from the last to the first there is no relation so as to sustain an intermediate transfer. The statute of 27 Hen. 8 oh. 16, for enrollments, requires a deed of bargain and sale, whereby any estate of inheritance or freehold shall be made, to be enrolled within six months, and enacts that the lands, &c., shall not pass except the same be enrolled within that time. It has, however, been held, that if a deed made by a person seized, be enrolled within the six months, the land passeth from the delivery of the deed; and although after the delivery and acknowledgment, either bargainer or bargainee should die for when the, deed came to be enrolled, the bargainee in judgment of law was seized from the delivery. 2 Inst. 674, Mallory v. Jennings. A different rule however prevails, where the sale is made by commissioners of bankrupts; an instance more analogous than the former to our sheriff’s sales. In the case of Perry v. Bowes, reported in 1 Ventr. 360, and Jones 196, the commissioners of bankrupts had assigned the lands in question to the lessor of the plaintiff by deed of bargain and sale, which was afterwards enrolled; the statute of bankrupts, 13 Eliz. ch. 7, directing the commissioners by deed indented, enrolled in one of the Queen’s Majesty’s courts of record, to make sale of the lands, tenements and hereditaments of the bankrupt. This action was brought after the enrollment, but the demise was laid of a day subsequent to the delivery, and prior to the enrollment; and the question was, whether that was sufficient to entitle the plaintiff to recover. On the part of the plaintiff it was argued, that after the deed was enrolled, it should relate to the delivery, and it was compared to a bargain and sale, where, by the statute of Henry 8, when the deed is enrolled it relates, and if the bargainee sells before enrollment, the subsequent enrollment makes it good. But the court said, that the commissioners had no estate, but solely a power given to them by the statute of bankrupts, which o'ught to be executed in the manner prescribed by the statute with the circumstances it directs, which is not only by deed indented, but enrolled likewise; and they must execute the power, in all circumstances, before it can become effectual, and the court, holding that the deed did not relate so as to sustain the intermediate lease, rendered .judgment for the defendant. Preston in his essay on abstracts of title, says; While a bargain and sale by the commissioners of bankrupt, operates only from the time of enrollment, other bargains and sales operate either in fact or by relation from the time of the execution. 1 Prest. 168. And ho gives the reason. “ As commissioners have an authority only and not an estate, no estate will vest under the bargain and sale until enrollment.” Ibid 171. He farther says, “till the assignees have an estate under a deed indented and enrolled, they cannot communicate a legal title to a purchaser. Ibid 172. “ Under bargain and sales from commissioners of bankrupt, no estate passes till enrollment. The commissioners have only an authority to sell by deed, indented and enrolled. No estate is in them, and their authority is not exercised till all the circumstances under which it is to be performed are complete.” Ibid 289. In the late case of Doe v. Mitchell, the demise was by the assignees of a bankrupt, and was laid after the date of the commission, but before the general assignment, and also before the bargain and sale by the commissioners to the assignees. The plaintiff was non-suited on the trial, and moved to set aside the non-suit on the ground that the bargain and sale, when executed, related to the act of bankruptcy, and so the demise which was after the commission, and of course after the act of bankruptcy was said to be well. The court enquired, “if there was any authority extending the doctrine of relation to the conveyance by the commissioners of the bankrupt’s freehold ; for without some authority, they said it would be going too far, to carry it to that extent; and no authority being cited they said it remained in the bankrupt, though not beneficially, until taken out of him by conveyance.” The analogy between these cases and a sale by a sheriff is very obvious. In real estate, levied on by execution, the sheriff has no kind of interest or estate. Unlike chattels, of which ho may take possession, and in which he acquires a species of property, sufficient in certain circumstances to sustain an action, lie could not enter into possession, nor prosecute, if the defendant in execution should be ousted, or if injury should be done by waste or spoliation. He has a power or authority given to him by the statute to be executed. He has'no title in himself but is the instrument of the law, to transfer the title. Hence like the commissioners of bankrupts, having no estate in himself but an authority only, the freehold remains in the defendant, no estate passes to the purchaser until all the circumstances are completely performed, until the deed whereby the law says, the title is to be transferred shall have been executed and delivered. In case of ordinary persons the deed may relate, because the grantor had an estate in him, but not so with respect to the sheriff. In respect to him the ground on which the relation is sustained does not exist. And this consideration furnishes an answer to the argument, drawn from the supposed analogy to the operation which a deed sometimes has, by relation to the time of the contract for the purchase of the land, so as to render valid an intermediate disposition of the land by the grantee. But there, the grantor has the whole estate in him at the time of the contract, a plain principle of equity regards him as a trustee, at least from the time he receives the purchase money; and the grantee having made the conveyance, is not, nor are those claiming under him, permitted to question the conveyance he has. made. An argument of some force at least upon the first view of it, to give the same relation to the deed of the sheriff as to that of an individual, is drawn from the words of our statute already mentioned, “and as fully to all intents and'purposes, as if such person had sold the said lands, tenements, hereditaments and real estate to such purchaser, and had received the consideration money and signed, sealed and delivered a deed for the same.” But the argument claims too much force for these words; and far beyond the intention of the legislature. They were meant to shew the nature of the estate to be conveyed, “ as good and perfect an estate as the defendant had; the time at which the nature of the estate should be fixed, “ at or before the judgment,” so that no subsequent lien or alienation should have effect; and as the ¿leed was not to be made by the defendant, but by the officer having no estate, to shew that the deed thus made should vest in the purchaser, the estate of the defendant held by him at the judgment as completely as if the conveyance had been made by the defendant himself. The effect of the deed to convey, was alone designed in this clause. Its relation, if it should have any, was left to the regulation of the principles of the common law. In the consideration of this subject, it should not be overlooked that our sheriff’s sales, are, or rather may be, always for cash, so that a purchaser may, at all times without delay, obtain his deed and acquire his title.

In order to establish the doctrine of relations as contended for on the part of the defendant, and to shew that it should operate so as to sustain his title, two cases are cited from the Supreme Court of the State of New York. Jackson v. Dickinson, 15 Johnson 309; and Jackson v. Ramsay, 3 Cowen. 75. But these cases, notwithstanding some general expressions, which, however, ought always to be understood with reference to the subject under consideration, do by no means carry the doctrine of, relation to the extent requisite, for the support in the present case of the defendant’s title. In the first case the question was, whether a purchaser of premises subject to a mortgage at sheriff’s sale, on the first of March, whose deed was not executed until the 19th, was precluded from contesting the validity of the mortgage, by a decree of foreclosure upon a bill in Chancery, filed on the 10th of the month, to which ho was not a party. In the latter case, a sale was made by the sheriff under execution, against one Mr. Michael. Some time afterwards he departed this life. No deed being made by the sheriff, the devisee of Mr. Michael, brought an ejectment against the purchaser who had gone into possession. Before the trial, a deed was executed to the purchaser, and the court held that this deed, against the heir, who had in fact no better rights than the original defendant, was an available defence. In neither of these cases was the validity of an intermediate sale or conveyance by the purchaser, or the divesting of his interest against his consent, 'and by the intervention of legal process, brought into view. But another consideration clearly proves, that these cases ought to have no weight here. The law of the State of New York, under, and in reference to which they were decided, is essentially different in the point now under examination, from our statute for the regulatipn of sheriffs’ sales. The statute of New York, (1 Rev. Laws, N. Y. 392, edition of 1807) does not prescribe or direct the making of a deed by the sheriff. It requires an advertisement and sale at public vendue; but as to. any deed or conveyance by the sheriff is totally silent. Hence, it became a serious question in New York, whether the sale at vendue was not sufficient to pass the title, and whether a deed from the sheriff to the purchaser, was at all necessary for that purpose; and it was not until the case of Simonds v. Catlin, 2 Caines 62, that the question was settled by judir cial determination; a deed was then held necessary; but it is to be remarked, not because the act regulating sheriffs’ sales prescribed it, but because of the general terms of their statute of frauds requiring, like the English statute, a deed or note in writing to pass an interest in lands, and because, in some measure, as it would seem from the arguments of the court, of the propriety, policy and convenience of a conveyance by deed. But by our statute as it has been already mentioned, a deed to be made by the sheriff is not only expressly required, but is indispensable; and is the very act whereby the estate is to be transferred to and vested in the purchaser. In Jackson v. Dickinson, the court said, “the subsequent delivery of the deed being mere matter of form, must have relation back to the time of the purchase at sheriff’s sale.” The court then considered, and doubtless very properly since their statute did not require it, the deed as the formal part of the transaction, and hence the conclusion drawn by them was in accordance with the rule stated by Lord Mansfield, that the formal part, or the deed, must have relation to the substantial part or the sale. I trust I have shewn that our statute has given the converse characters to these parts; and hence the rule of relation does with us apply in a different manner.

Upon the whole I am satisfied that the title of the defendants cannot be supported by the doctrine of relation; that the deed executed and delivered by the sheriff in 1826, cannot relate to and operate from the sale in August, 1821, nor thereby give title to Swett, in such manner as to support the levy under the execution against him, in September, 1821, and the sale and conveyance of the sheriff in August, 1825.

The question then remains, whether in September, 1821, or August, 1825, after the sale, and prior to the deed, Swett had such an interest in the premises as was liable to be seized and sold under execution. The solution of the first inquiry extends in a great measure to determine this question. For it is clear that at the proposed period, Swett had no legal estate in the premises; nor can ho even now be considered as having had a legal estate at that time, unless by relation. And it is also clear, there is no ground to presume that Swett was then in actual possession of the premises. It was indeed insisted by the defendant’s counsel, that as they are in possession, and were when this action was brought, and as they claim title under Swett, the legal presumption is, that they received from him a possession which he had previously held. For such an inference there would perhaps be somewhat more reason if the defendants claimed by, or had received a direct conveyance from Swett. In the absence of any proof as to possession, it may sometimes be presumed to be in him who has the legal title. But Swett had no legal title when the defendants went into possession, nor until since the commencement of this suit. The presumption then on this ground is wanting, and so, therefore, there is no proof éither from direct evidence or legitimate presumption, that Swett had possession at the levy and sale. It was, indeed, said by the defendant’s counsel, that a deed had been given by the sheriff in August, 1821, but for themselves they repudiated that deed; they did not give it in evidence, nor profess to claim under it. It was produced by the plaintiff; no judgment or execution was offered to sustain it, and upon looking into it, the execution which it recites commands the sheriff to make the debt and damages of the lands, whereof Clement was seized in June, 1820, and does not, therefore, affect the premises in question, which had been conveyed by him to Jones, in July, 1818. It was, indeed, surmised that the recital was a mistake, and the deed really designed for the same purpose, as that of November, 1826 ; but of the alleged mistake no evidence is given, and we are, therefore, to read the deeds as their contents purport.

At the time then of the levy and sale under the execution against Swett, the case stood thus : The premises had been struck off to him by the sheriff- at public vendue. If he had paid the purchase money-, or whenever he did pay it, he had a right to call on the sheriff for a deed; which, the conditions of sale being fulfilled, a court of equity, and perhaps the court out of which the execution issued, would have compelled the sheriff to make. At most he had an equitable interest, but such an interest could not be the subject of levy, sale, and conveyance under execution. Of such an interest he was not seized, in the meaning of the clause of the act of the legislature, which thus defines the real estate whereon the execution may be levied,. In Jackson v. Scott, 18 John. 94, it was held that a possession under a contract for purchase was an interest in land on which there might be a levy. But the possession was the principal ingredient, the groundwork of the levy, and without it the interest would not have been sufficient. We have decided, say the court, that a mere equitable interest cannot be sold on execution, but if connected with the possession of the land, the legal interest, of which the possession is evidence, may be sold. The purchaser acquires all the debtors’ legal rights, and possession is a legal right. In 2 John. Ch. Rep. 312, Chancellor Kent said, a mere equity is not within the reach of process at law. 1 do not know oi any case in which a court of equity has considered an execution at law as binding an equitable right. The idea is altogether inadmissible.” In 1 John. Ch. Rep. 56, the same Chancellor thus describes the subject of execution at law: “There must be either a real estate or an interest known and recognized at law, or an equitable title within the purview of the provision in the statute of uses to which I have alluded, or an execution at law will not reach it. A judgment at law is not a lien, on a mere equitable interest in land, and the execution under it will not pass an interest which a court of law cannot protect and enforce.” And just before, the Chancellor liad said in reference to the statute of uses: “If the contract had been fulfilled so that Smith had been entitled to a deed, when the judgment was obtained, and sale made, the statute might have applied.” The provision of the statute of uses in New York, to which the Chancellor refers, is contained in the 4th section of the act concerning uses, N. Y. Rev. Laws 68, and authorizes the seizure of lands held in trust on a fieri facias against the cestui que trust. But in this state we have no similar enactment. Laying aside then that clause of the Chancellor’s proposition, and the interest of Bwett in the present case is not .comprehended in either, of the other clauses, for it was neither real estate, nor an interest known and recognized at law. But if we had a similar clause in our statute, or if an equitable interest might be levied upon and sold, it will have been observed that the Chancellor very properly makes it a prerequisite, that the contract should have been fulfilled, and the purchaser should have been entitled to a deed ; and in truth it is presumed the most zealous advocate for the most liberal stretch of the execution, will not consider the interest of the purchaser sufficient until he has paid'the purchase money. If this then be a sound rule, its application fully evinces the insufficiency of the interest of Swett, to be the subject of seizure and sale, for there is no evidence before us, that prior to the sale or conveyance by the shereff under the execution against him he had paid the purchase money; nor indeed until the -deed of November, 1826. The deed of August, 1821, although invoked by the counsel of the defendant, is for the reasons I have heretofore suggested in respect to it, wholly inadequate for that purpose.

From this view of the case, the conclusion in my opinion clearly results, that Swett had not at the sale and conveyance by the sheriff, an estate or interest in the premises liable to seizure and sale.

As the case 'does not in my apprehension, shew any valid title in the defendants, it is unnecessary to examine the positions assumed by the plaintiff’s counsel, and so fully discussed ajfc the bar, that the judgment against Clement was void, for want of jurisdiction, and could not if valid bind after acquired lands bona fide aliened before execution.

Nor is it necessary to examine sundry questions, raised by the defendants on the trial and appearing on the state of the case, by way of objection to certain parts of the evidence and of motion for non-suit, as these were expressly waived on the argument at the bar.

One point raised by the defendant’s counsel remains to be considered. It was insisted, the plaintiff had failed to maintain the issue on his part, because he claimed under a mortgage given to secure the payment of a bond, and on the trial did not produce the bond but relied on the mortgage only. This point is not well taken by the defendants. The plaintiff having produced the mortgage whereby, as between the parties to it, the legal estate was conveyed by the mortgagor to the mortgagee, and it appearing the day of payment in the condition had passed, the mortgagee was not bound to produce the bond. The mortgage shewed a present estate, defeasible indeed on a condition — on a condition subsequent —and he who claimed the benefit of that condition was bound to shew that it had been fulfilled.

Drake, J. The first objection relied upon, in opposition to the title of the defendants, in this case, is, that the bond, on which the judgment was entered, in 1816, against Joseph and Samuel Clement, at the suit of Joseph C. Swett, is not a bond given for “ the payment of money only ” within the words and meaning of the statute, Revised Laws, p. 685; and that therefore the court had no authority to enter such judgment.

The penal part of the bond is in the ordinary form, for 86000, and conditioned for the payment of §3000, “with interest from the date thereof, on or before the first day of March next.” But it is added, “ It is here understood that if Josiah F. Clement does pay to Richard French, his executors, administrators, or assigns, the full amount of an obligation assigned to the said Richard French by the said Samuel Clement, for §3000, with interest, from the date of the said ebligation, on or before the first day of March next, then the above obligation to bo void,” &c. Now, this bond may be defeated by the payment of §3000, directly to the obligee, or by the payment thereof to a third person therein named, and who held another security for the same sum. Still it is a bond for the payment of money only. It is not to bo discharged by the performance of a duty, or service, or by doing any collateral act. Promissory notes and bills of exchange of this description have been adjudged not to be such within the custom of merchants; not because they do not comply with the requisite of being, for the payment of money only, but because they do not comply with another requisite, that is that they be payable at all events. A requisite equally important to these securities, as they are intended to circulate from hand to hand, and should not be incumbered with conditions, and liable to various modes of defeasance. But the same reasons will not apply in opposition to the entering of these summary judgments upon bonds. They have no protection in the hands of an assignee; and if improperly entered; the court will open or cancel them as equity may require. The legislature merely meant to guard against uncertainty, as to the amount originally stipulated to be payable. That it should be of a nature to be determined by calculation, and not embrace a case of unliquidated damages. This bond comes within the words of the act; and as it appears to me, within its proper and contemplated application. Upon this view of the subject, it will be unnecessary to inquire whether if the bond is not one contemplated by the act, the judgment would, for that reason, be wholly void.

Again, this judgment was entered on the 21st day of September, 1816, before Samuel Clement, the defendant in the same, acquired title to the premises now in dispute. They were conveyed to him on the 20th day of June, 1818; and on the 22d day of July of the same year, he conveyed them to David Jones; under a mortgage executed by whom the plaintiffs claim title. No execution was issued on this judgment, until after the lands were again sold by Clement. The judgment was reviewed by scire facias, in June, 1819, and a writ of fieri facias was soon afterwards issued thereon, and levied on the premises in question.

'Upon this state of facts, it is objected that the judgment was no-lien on these lands, and that they should be held by a bona fide purchaser, clear of all incumbrance from the same. The 12th section of the act, making lands liable to be sold for the payment of debts, Revised Laws 430, favors this construction, but other parts of it, and particularly the 1st, 6th and 13th sections, leave no room for doubt in my mind, that the legislature contemplated that a levy might. be made on lands acquired after the date of the judgment, or conveyed to other persons before execution. And the uniform understanding, and course of practice are so. An argument cannot fairly bo drawn in favor of the contrary doctrine from cases of personal property. There the judgment does not bind at all. And the execution becomes a lion only after actual delivery to the officer, and then merely for a particular purpose; not to remain long an incumbrance on this fleeting property, but for the purpose of enabling the sheriff to levy on it before the return of the writ. And if he do not, the force of the execution is spent, and it does not remain a lien. But land is of a permanent nature. It is conveyed by deed duly executed and recorded. The title can be traced, and ordinary caution will enable a purchaser to examine it, and see through whose hands it has passed, and whether any of the owners have made a prior conveyance, or incumbered it by mortgage or judgment. Judgments are matters of public record. And as the lien is not of a secret nature, and cannot endanger the rights of the vigilant, I think the interests of justice, as well as the sound construction of the statute, require the extension of the lien of the judgment, so as to embrace this after acquired property.

The remaining question, agitated in this cause, is one of considerable difficulty. It arises upon the effect of the sheriffs deed to Swett, bearing date the 21st day of August, 1821, the time of the sale, but really executed after the present action was brought, and after the second sale of the premises, when they were levied on and sold as the property of Swett, and purchased by the defendants. Had Swett, before receiving any deed from the sheriff, such an interest in the premises as could be levied on and sold ? A mere equitable interest in a term of years, or other chattel cannot bo sold on a fieri facias. 8 East. 467. By the statute of Westminster 2, (13 Edwd. 1,) c. 18, the sheriff may deliver to the plaintiff “ a moiety of his (the debtor’s) land.” Under this statute, it was decided that a trust estate,could not be extended. But by the 29 Chs. 2, c. 3, lands, &c., held in trust may be extended in the hands of trustees, for the debt of eestui que trust. By our act of assembly, Revised Laws, p. 431, sect. 5, an execution may be issued against the goods and chattels, lands, tenements, hereditaments and real estate of the party against whom such judgment is, or may be, awarded. Words similar to those of the first English statute authorizing the elegit, and liable to the same construction; and we may presume contemplated to be confined to cases of legal title, as the construction of the English statute; and the supplementary statute whereby trust estates were embraced, were well known ; and if it shall be considered, that, as the debtor’s property may possibly escape under this construction of the statute, it would be good policy to extend it to embrace trust estates, it is for the legislature to remedy the defect as the British Parliament did. In the 6th section, prescribing more particularly the form and manner in which the execution shall issue, the lands, &c., whereof the debtor was seized, are authorized to be taken. Now a seisin always refers to a legal title. A person is never said to be seized of an equitable interest. It is a right at law either reduced into possession or not, and constituting either a seisin in deed or a seisin in law.

The cases of resulting trusts held to be bound by execution in the cases reported in 1 Johnson 45, and 3 Johnson 217, and others, to be found in their reports, depend upon a clause in the statute of New York, by which the sheriff is authorized to seize in execution all such lands, &c., as any other person or persons be, in any manner of wise seized to the use or in trust for him against whom execution is seized,” &c. An equity of redemption 'can hardly be said to form an exception to this principle, as it has long been considered a legal estate ; that the mortgagor in possession is real owner; and that the mortgagee has but a chattel, and notwithstanding its form, the mortgage is a mere security.

Upon this view of the ease, the interest of Swett, being merely an equitable interest was not the subject of levy and sale under the writ of fieri facias last issued. And if the legislature have refrained from making these equitable estates liable to execution, on account of the difficulties which often attend the acquiring of the legal title, and the consequent uncertainty of their real value, which would make them the subjects of mere speculation, and liable to be sacrificed for a trifling part of their worth, I am not disposed to do that indirectly, which they refrain from doing directly. I am not inclined to suffer an act done some years afterwards, to make that a valid levy and sale, which was not so when the sale actually took place, and when the bidders had to judge of the value of the property. I cannot adopt any doctrine of relation of the sheriff’s deed of 1.826, back to the time of the first sale which shall make good the second.

Ford, J., concurred.

Let judgment be entered for the plaintiff.  