TILLEY VS. FARROW.

paying any fees, if he shall have passed the lighthouse, cannot be construed to give any vessel bound out, excepting coasting and fishing vessels, the privilege of sailing without a pilot. At least, this seems to us at present to be the true construction of the act. But as it is not necessary to decide this point, in order to settle the action before us, we withhold a definitive opinion upon it.

[* 20 ]

Plaintiff nonsuit

*BENJAMIN S. WILLIAMS versus JONATHAN AMORY

An execution may be extended on an estate of the judgment debtor in reversion or remainder.

It was certified by a justice of the peace, on an execution, that A C was sworn to appraise the real estate of the judgment debtor. BC made the appraisement; and the sheriff returned that he had caused B C to be sworn, &c., and it was held well enough.

Where the sheriff failed to certify in his return upon an execution, which he had extended on the real estate of the judgment debtor, that the appraisers were discreet and disinterested freeholders, the extent was holden void.

THIS was a real action, in which the said Williams demanded of the tenant Amory possession of a certain piece of land in Boston; and it was submitted to the decision of the Court upon the follow ing facts agreed by the parties:

On the 5th of April, 1780, Benjamin Sault was seised in fee of the demanded premises, and on that day granted the same to Margaret Williams for life, with remainder in fee to Benjamin S. Williams, the father of the demandant; and thereupon the said Margaret entered upon the premises, and she and the said Benjamin S., the father, became seised thereof according to their respec tive estates therein.

On the 7th of November, 1788, one Jerathmeel Bowers caused the said remainder of the said Benjamin S. to be attached in a suit, wherein he recovered judgment in September, 1789, for £285 12s. 9d. damage, with costs. Immediately after the rendition of the said judgment, the said Bowers sued out his execution thereon, and directed it to be extended (among other things) upon the remainder of the said Benjamin S. in the demanded premises. This was accordingly done, in the manner and at the time certified by the then sheriff of this county, in his return upon the execution, a copy of the same being filed in the case.

The execution was in legal form, and was dated September 15,

WILLIAMS vs. AMORY.

1789. On the back thereof is written, first, a certificate of Israel Keith, a justice of the peace, dated October 7, 1789, that Benjamin Waldo, Benjamin Davis, and Joseph Russell, were sworn faithfully and impartially to appraise, &c. Then follows a certificate, that the subscribers thereto, being duly chosen and sworn, &c., did, by direction of the creditor, repair to a certain lot of land situate in Boston, and * having carefully viewed and examined [*21] the same, did, upon their oaths, appraise and value the same premises at the sum of, &c., in part satisfaction of the execution. Dated October 9th, and signed Benjamin Waldo, Edward Davis, Joseph Russell. Then follows the sheriff's return: "Boston, October 9, 1789. Pursuant to the within writ of execution, I caused Edward Davis, on my part, to be appointed; the creditor, on his part, appointed Benjamin Waldo, and Jacob Williams, attorney to the said Benjamin S. Williams; the debtor, he being absent, appointed Joseph Russell, on his part, to appraise such real estate as should be shown by the said creditor to satisfy the same, and all charges intervening; and they being duly sworn faithfully and impartially to appraise the same, the said creditor's attorney did show a certain lot of land, as the property of the said Benjamin S. Williams in remainder in fee, bounded, &c., [including the demanded premises;] the said appraisers, considering the premises as the estate of the said Benjamin S. Williams in fee, in remainder after the life of Margaret Williams, valued the premises, after being duly sworn, at the sum of, &c.; and so far, in part, I return this execution satisfied, by direction of the creditor." Lastly, The creditor certifies that the sheriff had so extended the execution by his direction that he is therewith content, has received possession of the premises from the sheriff, and orders him to return the execution in part satisfied accordingly. The execution and the return thereon were duly recorded within three months thereafter, and were to be considered as part of the

case.

The said B. S. Williams, the elder, died on the first day of June, 1791, intestate, leaving the demandant, an infant, his only child and heir, having been born in the same year.

The said Margaret, tenant for life, died on the second day of August, 1794; upon whose death the said Bowers entered, by virtue of his said extent and levy of his execution, and took actual possession of the demanded * premises; and he, or his [22] assigns, of whom the tenant, by sundry mesne conveyances,

is one, have continued seised and possessed, and have ever since continued to hold the same, by force of the attachment, judgment. execution, levy, and extent aforesaid.

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WILLIAMS vs. AMORY.

Judgment was to be rendered by nonsuit or default, as the opinion of the Court should be upon the facts stated.

Dutton, for the demandant, contended, 1. That an estate in the remainder could not be thus extended upon; and, 2. That in the case at bar, the proceedings under the execution were insufficient to pass the title, if an estate in remainder was liable to an extent.

That an estate in remainder or reversion could not be extended upon at the common law, he cited the authorities in the margin. (1) Nor does our statute of executions make remainders and reversions liable to an extent; (2) except only in the case of their having been previously mortgaged, the fourth section of the statute having provided that "all rights in equity of redeeming lands, mortgaged reversions, or the remainders, shall be liable," &c. then they must be extended as in England, by elegit, under the statute of Westm. 2, (3) or they must be sold as a chattel interest. Our statute requires that the officer shall give seisin and possession of the land to the creditor. But a reversioner or remainderman has no seisin in fact to be given. (4) And the sheriff would be a trespasser in going upon the land to deliver seisin; so also would the creditor in receiving it.

After the creditor has received seisin from the officer, he has an immediate right to the undisturbed possession; and he may maintain a real action, counting upon his own seisin, or he may have trespass against the debtor. (5) But he can have no such remedies. when entitled only to a reversion or remainder.

Further, the statute expressly saves to the widow her dower in all lands taken in execution. But a widow cannot have dower in a reversion or remainder: (6)

[*23]

*The statute also gives to the debtor a right to redeem the land within a year from the levy, by tendering to the creditor, or the tenant in possession under his title, the amount of the debt, with the interest, &c.; and if the creditor or tenant shall refuse to release the land, the debtor is entitled to his action of ejectment, and shall recover the possession. But in case of an extent upon a remainder or reversion, the debtor is without remedy;

Dyer, 373.Com. Dig. Exon. C. 2,

(1) 2 Inst. 394.- Shep. Touch. 359.- Carth. 128.-3 Mod. 256. Salk. 355.-2 Lord Ray. 785. - Cro. Eliz. 742. — 8 East, 467.3, 14.

(2) Stat. 1783, c. 57.

(3) 13 Edw. I. c. 18.

(4) Brooke, Abr. Seisin, 13.- Co. Lit. 32, 330, b. H. & B's. note on sec. 266. 1 Burr. 109. Sulliran's Lectures, 66, 67. - Watkins on Descents, 40, 46, 107, 137. (5) 3 Mass. Rep. 220. — Ibid. 523.-4 Mass. Rep. 402. - Ibid. 150 (6) Co. Lit. § 36.- Perk. 340, 345.

Rep. 253.

Co. Lit. 31, 32. — Finch's L. 103. —7 Mass

WILLIAMS vs. AMORY.

although the statute evidently intends that a right to redeem shall always follow the extent.

But whatever may be the law upon the preceding points, in this case there were such defects in the proceedings under the execution, under which the tenant claims to hold the land, as are sufficient to avoid his title.

The justice of peace certifies that Benjamin Davis was sworn as an appraiser; yet the sheriff returns that he appointed Edward Davis, and this latter, though never sworn, acts and certifies as an appraiser.

The appraisers valued the land, and not the estate in remainder, which was all that the debtor had in the land; yet they did not set out the same by metes and bounds, as the statute requires them to do in all cases.

The tenant claims title under a statute. To maintain such title, he must show all the requisitions of the statute complied with. But in this case the sheriff, by whose acts alone the title passes, has not returned that the appraisers were freeholders, nor that they were disinterested and discreet men, nor that he delivered seisin and possion to the creditor, all which are made necessary by the statute. (7) The counsel for the tenant, being directed by the Court to confine their argument in the defence to the objections to the proceedings under the execution,

W. Sullivan argued that the statute should have a reasonable construction, and from the known laxness of practice among officers at the period of these proceedings, all possible allowances were to be afforded to the doings and returns of officers. The sheriff is a known officer, and an officer of rank, in whom [24] great confidence is always placed. It may be presumed that he would allow none but suitable persons to be appointed as appraisers. They certify that they were duly selected, and their oath is the best, if not only, assurance of their impartiality. The sheriff certifies that they appraised the debtor's remainder in the land.

Prescott considered it to be wholly a question of evidence, in considering which the lapse of time must have great influence. The appraisers, it appears, were selected by the proper parties. It is a provable fact, that they were disinterested and discreet freeholders. Upon the seisin, which the creditor received, he could have maintained trespass immediately. In such case, had these omissions of the sheriff been objected, he would have been allowed to amend his

(7) See 9 Mass. Rep. 141.-1 Mass. Rep. 87.-2 Mass. Rep. 491, 152. — 11 Mass Rep. 468.10 Mass Rep. 313. —7 Mass. Rev. 312.—8 Mass. Rep. 284.

WILLIAMS vs. AMORY.

return, being then alive. By this means the creditor's title would not have been made better; but a defect in his evidence would have been cured. At this distance of time, the Court will presume that what an officer did, he did properly and in conformity with the law; as in the case of Gray vs. Gardner, (8) after a shorter interval, it was presumed that an administrator had conformed to the requisitions of a statute equally positive, in his conduct respecting the sale of the real estate of his intestate.

PARKER, C. J., delivered the opinion of the Court. In this action the demandant claims to be seised and possessed of a tract of land situated in the town of Boston; to which he deduces a title from Benjamin S. Williams, his father; and it is agreed that in 1780, one Benjamin Sault was seised of the land demanded, and by deed granted it to Margaret Williams for the term of her life, with remainder to the demandant's father, the said Benjamin S. W., in fee simple. The tenant for life entered under the said conveyance, and continued in possession until 1794, when she died. Benjamin S. Williams, the remainder-man, died in 1791, never having been in

actual possession of the land. As he took, by the deed, a [*25] vested remainder in * fee, the title of the demandant, who was his only child and heir, is complete and perfect; unless the land has been transferred by his father during his life, or by some act of law, which interrupts the descent.

The tenant contends that the land was so transferred in the lifetime of the said Benjamin S. W., the father; because, in the year 1789, Jerathmeel Bowers recovered a judgment against him, and caused the same to be satisfied by extending his execution, in due form of law, upon the right and interest of the said judgment debtor in the said land; and that the said Bowers became seised of the said remainder by virtue of the said levy; he having, after the death of the tenant for life, entered into the premises, and occupied the same, until he parted with his title therein. The tenant has all the estate in the land, which the said Bowers acquired under his said judgment, execution, and levy.

The title of the demandant is thus legally intercepted, provided the estate of his father in the premises could lawfully be extended upon to satisfy the judgment of Bowers, and provided it appears by the return of the doings under the execution, that the levy was duly made by the sheriff.

The demandant's counsel has contended that, by law, an estate not in possession, but in remainder, depending upon a life estate in being, is not subject to be extended upon, in satisfaction of an

(8) 3 Mass. Rep. 399.