Henry Larcom et al. versus Benjamin Cheever, 16 Pick. 260

Shaw C. J. delivered the opinion of the Court. The main question in the present case is, whether the demandants were so seised, when they commenced this action, as to enable them to count on their own seisin. It appears, that the demanded premises were part of the estate formerly of Joshua Ellenwood, that it descended to his heirs, of whom Joanna, the wife of Benjamin Brown, was one, and that by a probate partition made in 1805, the premises were set off to her to hold in severalty.

It thus appears, that Brown and his wife became seised of the premises in her right, that Joanna died in December 1831, that Benjamin died in December 1832, and that the demandants are the heirs at law of Joanna. There were no children of the marriage, and of course no tenancy by the curtesy in the husband. Upon this statement it would seem clear, that the demandants are entitled to recover.

Where the title is cast by law, on one, he becomes seised in law presently, without any actual entry ; and this distinguishes the case from a title by purchase, as devise, where an entry is generally necessary, to vest the actual seisin in the devisee. Descent being a title cast on the heir by operation of law, he becomes seised without actual entry, and may maintain a writ of right on his own seisin. Then the question is, whether the ancestor, Joanna, was disseised in her lifetime by the levy of the execution, so that she did not die seised.

It appears, that in 1830, in the lifetime of both Brown and wife, the defendant levied his execution on the premises, as the fee simple estate of Benjamin Brown. But it further appears, that notwithstanding this levy, Brown and wife occupied the estate till her death, in 1831. Was this formal levy, and instantaneous seisin as against Brown, a disseisin of Joanna Brown ? We are of opinion that it was not.

It has been held, that where an execution is regularly levied, on lands liable by law to the extent, and duly returned &c., the seisin delivered to the creditor will operate, to some purposes, as a disseisin of the tenant. Gore v. Brazier, 3 Mass. R. 523 ; Big. Dig. 701. It would appear therefore, that where the land is not liable to the extent, the creditor gains no seisin, and the tenant is not disseised. In the present case, it is quite clear, that the land of the wife was not liable to the extent by a creditor of the husband, in fee simple.

If the levy gave any right to the - execution creditor, which is very doubtful, it was only for the joint lives of the husband and wife, and could not affect the heirs. It could operate only as a transfer of her life interest, during the life of her husband. But it is further held, that the extent of an execution on land not belonging to the judgment debtor, gives no seisin to the judgment creditor, without an actual entry. Bott v. Burnell, 9 Mass. R. 96 ; S. C. 11 Mass. R. 163.

Here, as there was no actual entry, and as the land was not the land of the judgment debtor, the creditor acquired no seisin as against the wife, or as against the husband and wife as seised in her right. We think, therefore, that the wife was not by the levy of this execution disseised, that she continued seised to the time of her death, when the fee was cast upon the demandants, as her heirs at law, that they thereby acquired a seisin in law which is sufficient to enable them, on a writ of entry, to count on their own seisin. In regard to' the claim of betterments, we think it is inadmissible.

Admitting that the house was built by Brown, he was not holding by possession only', or by a bad title, or by any mistaken title, or title that has failed. He held by good title in right of the wife, and erected the buildings, to enable him to enjoy the estate. The case is not within the terms or the spirit of the statute, and therefore Brown himself could not have claimed betterments against the heirs, after the death of the wife ; and a fortiori, the defendant acquired no claim by bis mistaken levy of execution, nor would be have done so by any mode in which he could have made such levy.

The defendant is to be defaulted, and judgment entered for the demandants. See Melvin v. Locks and Canals &c., ante, 161.