Smith v. Starkweather , 5 Day 207 ( 1811 )

Trumbull, J.

(After stating the case.) In the present action, the plaintiff declares, that he was well seised and possesses! of the. lands demom'.ed. in his own right, in fee, until be was disseised by the d( fondant. The only question before us, is, whether the title, at law, is vested in the plaintiff, or in some other of the claimants ?

The defendant, after the delivery of his deed of release to Peters and his wife, had no claim of title to the laud; for the deed, though not recorded, is valid between the parties, and as it respects all persons claiming under them. Neither Halsey, Williams, nor Billin'ss, have obtained any legal title. -Vt the time when their claims, either by deed or levy of ex-rcuiiou, commence. Peters and his wife had only an'equity ol redemption in the land; and nothing more could be acqui-icd from them, by levy or conveyance.

The questions agitated a! the bar, whether the tender to ihe officer on Halsey’s execution, after he hat! completed the |r vy except recording, is valid for the purpose of defeating his title ; and whether the plaintiff, by virtue of his attachment, had such an interest, as would give him a right to tender in the names of P<Itrs and his wife, it is not necessary to determine, in the present case.

At the time when the plaintiff began his levy, by execution, Peters and his wife had only an equity of redemption in the land; but at the time the levy was completed, they had the legal title. had the plaintiff began his levy afterwards, and proceeded exactly as he did, his right would hr unquestionable. The equity of redemption did not exist, a! the time when the Sand was appraised and set off; it was merged by the release.

But i am of opinion, that a creditor in an execution, if never to be prejudiced, by any change <.f the debtor's title, between the commencement and completion of the levy; and that whatever title the debtor has. at the time the taut" is set off on appraisal, may well pass to the creditor. If anj mistake happen, from ignorance of the true situation of tin title, at the time of the appraisal, relief may he obtained ir chancery.

As the title was in Peters and his wife, and Ihe execution against Peters only, the plaintiff gained a title to the laud, a? tenant in common with the wife.

But it has been long settled, that one tenant in common, though lie declare on his own seisin and possession of tin tvhole, without noticing the right of his fellow commonci. may maintain his action of ejectment, in this form, against ¡. mere disseisor.

I am, therefore, of opinion, that no new trial ought to h* granted.

All the other judges concurred in this opinion.

New trial not to be granted