11 Mass. 222 | Mass. | 1814
In all cases the demandant is to recover upon proof of the title relied on in the count of the writ, which admits the seisin of the tenant. If the demandant in the case at bar acquired no title by the levy of his execution against Dutton, he had no seisin ; the count is not maintained. For, in that case, the demandant has not been disseised by the tenant; and whether he can prove a title in himself, excepting as an actual seisin is a title until a better title is proved, is not the question now to be decided.
The demandant’s execution having been levied within thirty days after judgment, if he acquired a title by the levy, it must be considered as existing by relation from the time of the attachment, which was made October II, 1811. That at least must be the operation of the levy in the case at bar, as a title to be compared with the title of the tenant under the deed of Dutton, made to the tenant on the 15th of November, 1811, after the attachment.
The supposition made for the demandant, upon which his title rests, is that the release from the Tuckers, in performance of their bargain with the tenant, but written and made, by some unaccountable mistake, to Dutton, conveyed a title to him, which the demandant acquired by his levy; because, against the effect of the execution and levy, the tenant cannot set up the deed made to him by Dutton subsequent to the attachment. And, in fact, Dutton’s deed to the tenant conveyed nothing; for Dutton then had nothing, not even an equity of redemption, which he had any capacity to convey; that deed having been made before the formal reconveyance io Dutton.
And there is a further objection to the operation of that deed, as a conveyance of a title to Dutton. He also was out of possession. Against him the possession was rightfully in the tenant; and Dutton was therefore incompetent to receive a release; which, if it had any operation, was a release to pass the right. The deed relied on, as constituting the title acquired by the levy of the execution, was therefore wholly ineffectual; first, because the releasors had no power to convey an estate against the tenant, then in the legal seisin of the demanded premises; and, secondly, because no release could have any operation to pass the right and title, much less a seisin, of the land, to a person out of possession, one who had by a solemn contract transferred his possession to another, as an estate in fee to be vested in him.
In this view of the case, therefore, and taking it for granted that there is no suggestion of collusion or fraud between Dutton and the tenant, to the prejudice of Dutton’s creditors, the demandant acquired no seisin by his levy upon an * estate, which had never been effectually reconveyed [ * 226 ] to Dutton. He was not, in fact, and he could not be, without a palpable fraud, a party to that conveyance ; which was unaccountably managed by the counsel for the tenant, as acting for him, and not for Dutton. If a party in intention, the rules of law deprived that deed of all effect; nothing passed by it.
We are satisfied that nothing was gained by the levy, in whatever form made, which was intended to be of the estate of Dutton; because he had, at the time, no estate, or demand, or title of any kind, which could be levied upon, in any part of the demanded premises.
Demandant nonsuit.
Porter vs. Perkins & Al. 5 Mass. Rep. 233. — Thatcher vs. Cobb, 5 Pick. 425. — Ilamblet vs. Francis, 4 Mass. Rep. 78. — Kennebeck Purchase vs. Call, 1 Mass. Rep. 483. — Bennet vs. Irwin, 3 Johns. 366.—4 Dane, Abr. 144, c. 110, art. 5, 826. — Dixon on Title Deeds, 663—665. — 2 Prest. Com. 324. — Sed vide Russell vs. Coffin, 8 Pick 143. — Pray vs. Pierce, 7 Mass. Rep. 381.
Stat. 1798, c. 77, § 4. And see Barber vs. Root, ante, vol. x. 269.
Vide White vs. Bond, 16 Mass. Rep. 400.— Cushing vs. Hurd, 4 Rick. 263.-— Carpenter & Ux. vs. Inhab. First Parish in Sutton, 7 Pick. 4.