Bowne et al., Appellants, against John A. Graham and Nathan B. Graham, Appellees, 2 Tyl. 411

Tyler, Assistant ■ Judge. The plaintiffs have brought their action quare clausum fregit against two defendants for trespass, done, as it is alleged in the declaration, on the 5th July, 1801, with a continuando to the 26th of February, 1802. The defendants have pleaded the general issue severally. It appears that the plaintiffs recovered judgment against John A. Graham, one of the defendants, in May, 1801, and procured' the land to be set off in part satisfaction of his execution on the 4th of July, 1801, by a regular levy. That the defendant John A.

Graham has not been in possession since the levy, and no intermeddling with the close or tortious act is proved to have been done by him. That on the 6th of January, 1802, the plaintiffs demanded possession of the land levied upon from Nathan B. Graham, who refused to surrender his possession, which he has held adverse to the other defendant, antecedent to the levy, and adverse to the plaintiff ever since.

So that the question which should be made is, whether the regular levy of an execution upon a judgment rendered against one of the defendants, who had quitted possession before, and never intermeddled with the premises since the levy, can be given in evidence to maintain an action quare clausum fregit against the other defendant, who has pleaded severally the general issue, and who was in adverse possession at the time of the levy, and has never surrendered his possession since ?

It is an established principle, that before an entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law. Therefore the books inform us, “ that an heir before entry cannot have trespass against an abator, but a disseisee may have it against a disseisor for the disseisin itself because he was in possession, but not for ' ail injury after the disseisin.” 2 Roll. Abr. 553. Vermont Stat. vol. 1. 323.

This leads to the inquiry, what is the operation Of the levy of our execution on lands; and this must be decided by a sound construction of our own statutes ; for we can obtain little or no assistance from the writings of our English ancestors, as the English writ of elegit meddles only with the profits; but the levy of our writ of execution transfers the fee of the land, if held by the debtor. How does it operate as against the debtor ? Does it give the creditor possession as against him ? The third

section of the act directing the levying and serving executions, in the latter clause enacts— “ And all executions extended and levied upon any houses, lands, or tenements as aforesaid, with the return of the officer thereon, being recorded in the records of the lands of the town in which such houses, lands, or tenements, are situate, or in the office wherein deeds respecting the same are required by law to be recorded, and also returned into the office of the Clerk of the Court, or Justice of the Peace, from which such execution issued, and there recorded, shall, as against such debtor, his heirs or assigns, make a good tide to the party for whom, such estate was taken, his heirs and assigns for ever.” But the mere levy of the execution and record made, create only a conditional interest in the estate levied upon in the creditor, and give no possession; for the 5th

section provides, that the real estate, thus levied upon, may be redeemed by the debtor in six months from the date of the levy, by-tendering or pay-. ing the full sums of debt, damages and costs mentioned in the writ of execution, and the officers’ fees thereon, together with interest thereon at the rate of twelve per cent, per annum; and the 6th

section declares what shall be the operation of the levy, as it respects both creditor and debtor, “ that no person or persons to whom any houses, lands or tenements shall be appraised and set off as aforesaid, shall enter and take possession of the same until six months after the execution shall have been extended ; and if such estate shall not be redeemed in manner as above provided within that time, the person or persons to whom such estate shall have been appraised as aforesaid, are hereby authorized and empowered to enter and take possession without giving any previous notice to the person or persons in possession, in as full and ample a manner as though seisin and possession of the same had been delivered by the officer who served such execution, or could have been given by the person in actual possession, any law, usage or custom to the contrary notwithstanding.

But although, at the expiration of the six months, the creditor, on non-payment of the redemption money may enter and take possession without any previous notice; yet he must make an actual entry, and take an actual possession, which the statute has empowered him to do, and which, if not done, he cannot have possession by implication of law.

The right of possession is one thing, and that the statute has secured to the creditor as against the debtor and those who hold under him; but the actual possession must be taken by his own act; and if this be not done, he has not that possession which will enable him to maintain the present action.

This actual entry must be without breach of the peace, or he himself is amenable to the law; and therefore the usual mode has been for the creditor to bring an action of ejectment, and obtain a legal and peaceable entry by a writ of possession; and the statute seems to countenance a resort to the law in case a peaceable entry is refused by the debtor or his legal representatives, by giving an action to the creditor for the mesne profits, and a right to tender their amount by the debtor in case the creditor docs not take possession in bar to an action for the mesne profits, which clearly implies, that, the Legislature did not consider that the possession accompanied the levy, or accrued to the creditor upon the non-payment of the redemption money.

The creditor, then, by the mere operation of the levy of an execution on lands, on the expiration of the statute term without redemption, does not obtain possession of the lands, and cannot maintain trespass grounded on such process. But what is the operation of the levy of an execution on lands, as relative to strangers to the judgment? The statute seems to have decided this by confining its operation in a certain case to " the debtor or debtors, or their legal representatives remaining in possession.” A creditor may levy his execution at will upon any real property which he esteems to be the debtor’s. The 9th

section of the statute contemplates cases where execution may be extended on lands not the property of the debtor, and provides a remedy by allowing the creditor an alias execution on his judgment on process of scire facias. It would be absurd to suppose that such levy could decide the rights of others, strangers to the judgment, and not holding under tire debtor.

It therefore appears to me, that the plaintiffs in this action not having been in possession by actual entry, or by operation of the levy of their execution, Cannot maintain their declaration of trespass quare clausum fregit against either of the defendants, and more especially against Nathan B. Graham, who was an entire stranger to the creditor’s judgment, and held a possession antecedent to the levy, and adverse to both the creditor and debtor. If the plaintiffs wish to try the validity of their title, accruing from the levy, as against either, they should resort to an action of ejectment.

Jacob, Assistant Judge. I agree with Judge Tyler. The object of the plaintiffs’ attorney in bringing this action, was probably to try the title under it; and if this action had been brought solely against John A. Graham, the judgment debtor, he would have been estopped from showing title against the levy; but as it appears he has never been in pos-, session since the levy, and Has committed no tortious act, this action will not lie against him.

If the plaintiffs wished to try the validity and operation of their levy against a stranger to their judgment, who holds by adverse possession, they should have re-' sorted to an action of ejectment. Chief Judge. It is much to be desired that the gentlemen of the bar would advise their clients, who claim title to land, to institute an action of ejectment against all in possession.

A resort to other actions, by which the title may be collaterally tried, is certainly not beneficial, as the verdicts are not conclusive as to the title, even against the trespassers If the title might be tried in the present action, which seems to have been the object of the attorney who drafted the declaration, a verdict for the plaintiff would only sound in damages; and a common writ of execution would issue, not a writ of. possession, which can only follow the action of ejectment. Cephas Smith, junior, for the plaintiffs. Nathan B. Graham, pro se et al. def. Plaintiffs nonsuited.