of rent, or by bringing an assize, or making a distress to recover it."

There are other causes of forfeitures, as for waste, and for breaches of conditions in leases, grants, and conveyances, which have been sufficiently considered in the former part of this volume. I shall, therefore, proceed to treat :

III. Of title by execution.

This species of title owes its introduction to modern statutes, and it was unknown to the common law. The remedy given to the judgment creditor by the English law, was a sequestration of the profits of the land

by writ of levari facias, or the possession of a *429 moiety of the lands by *the writ of elegit, and, in certain cases, of the whole of it by extent. In all these cases, the creditor holds the land in trust until the debt is discharged by the receipt of the rents and profits. This limited remedy against the real estate of the debtor, was not deemed sufficient security to British creditors, in its application to the American colonies; and the statute of 5 Geo. II., c. 7, was passed, in the year 1732, for their relief. It made lands hereditaments, and real estate, within the English colonies, chargeable with debts, and subject to the like process of execution as personal estate. Lands were dealt with on execution, precisely as personal property; and it was, consequently, the practice, in some of the states, and particularly in New-York, before, and even since the American revolution, down to the year 1786, to consider lands as assets in the hands of executors and administrators, and to sell them as such. This was also the practice in Pennsylvania, Maryland, Georgia, New

• Co. Litt. 211, b. Pennant's case, 3 Co. 74. Goodright v. Davis, Cowp. Rep. 803.

Jersey, New-Hampshire, and Massachusetts, and probably in the other New-England States." In the case of Wilson v. Watson, it was declared, in the circuit court of the United States for Pennsylvania, that lands might not only be seized and sold on execution at law as chattels, but that, if the defendant in the judgment died, the judgment might be revived by scire facias against the executor, and the lands of the testator taken in execution and sold, if there be a deficiency of personal assets. In South Carolina, the lands of an intestate, under the rule and practices introduced by the statute of 5 Geo. II., are sold under an execution obtained against the administrator, though the heir be no party to the proceeding. But though the statute

of Geo. *II., introduced the sale of real estate on *430 execution throughout the colonies, that statute was not the entire origin of the practice; for, in Massachusetts, as early as 1696, and in Pennsylvania, as early

Shippen, President, in Graff v. Smith, 1 Dallas' Rep. 483. 8 Gill & Johnson, Maryland Rep. 65. Telfair v. Stead's Executors, 2 Cranch, 407. Ewing, Ch. J., in Warrick v. Hunt, 6 Halsted's Rep. 1. Daniels v. Ellison, 3 N. H. Rep. 279. Gore v. Brazier, 3 Mass. Rep. 523. Dane's Ahr. vol. v. Statute of Massachusetts, 1783, c. 32. The practice still continues in Pennsylvania. 1 Watts, 414.

20.

b 1 Peters' Cir. Rep. 269.

note.

• Martin v. Latta, 4 M'Cord's Rep. 128. D'Urphey v. Nelson, ibid. 129. In North Carolina, the act of Geo. II., and the state act of 1777, gave the fi. fa. against the lands of the debtor. The act of 1784 gave it against the lands of a deceased debtor in the hands of his heir or devisee, upon a judgment against his executor or administrator in certain cases; but it prescribed a scire facias against the heirs and devisees. 1 Bad. & Devereux's Eq. Cases, 515. In East New-Jersey, it was declared by law, in 1682, among the early acts of the general assembly, that no man's land should be sold without his consent, though the profits of it might be extended. But shortly afterwards, the law provided, that the lands of the debtor should be appraised, and the sheriff was to deliver possession; and if not redeemed in six weeks, the lands were to belong to the plaintiff, in fee, at the price of the valuation. Leaming and Spicer's Collections, 235. 253.

as 1700 and 1705, lands were, by colonial statutes, ren-dered liable to sale on execution for debt.a

The practice of selling real estate under certain checks and modifications, created to prevent abuse and hardship, has been continued, and become permanently established. The general regulation, and one prevalent in most of the states, is to require the creditor to resort, in the first instance, to the personal estate, as the proper and primary fund, and to look only to the real estate after the personal estate shall have been ex*431 hausted, and found insufficient.b *In New-York,

• Province Act of Massachusetts, 1696, cited in 5 Dana's Abr. 23, note. Province Acts of Pennsylvania, 1700 and 1705. See, also, 1 Dallas' Rep. 483. 6 Binney's Rep. 145. Brackenridge's Law Miscellanies, 208.

See, for instance, New-York Revised Statutes, vol. ii. 367. Statutes of Ohio, 1831, p. 101; of Indiana, 1838, p. 276. Purdon's Penn. Dig. 369. Revised Statutes of Connecticut, 1821, p. 36. 56. Ibid. edit. 1839, p. 62, 63. Act of Tennessee, 1794, ch. 1, sec. 23. This was also a provision in the original charter of King John. Magna Charta, ch. 5. But this duty of the officer, though neglected, will not affect the purchaser of land at sheriff's sale. He is not bound to show that the debtor had not personal property to satisfy the judgment. Frakes v. Brown, 2 Blackf. Ind. Rep. 295. So in Connecticut, it would seem, notwithstanding the statute language, that real estate may be attached, though there be personal property sufficient to satisfy the demand. Isham v. Downer, 8 Conn. Rep. 282. Spencer v. Champion, 13 ibid. 11. And in Illinois, by statute of 27th February, 1841, personal property and the land on which the defendant resides are to be last taken on execution. This rule arises from the infant state of the country, in which the settler's domestic and farming goods and chattels, and the ground he has recently cleared and settled on, become vastly more necessary to him than his wild lands. The execution in chancery, which was originally by process in personam, or by sequestration of the estate, was, in New-York, by statute, sess. 25, c. 15, made analogous to an execution at law, by authorizing the chanceller to enforce performance of the decree by execution against the body, or goods and chattels of the defendant, and in default thereof, against the lands and tenements, and to be executed as at law. This power was continued by the New-York Revised Statutes, vol. ii. 182, 183, and every final decree becomes a lien on lands from the docketing thereof, and goods and chattels are bound only by actual levy on execution. In Kentucky, a delivery of a fieri facias to the sheriff, creates a lien upon the goods of the debtor. Savage v. Bed, 3 Howard's U. S. Rep. 111. In North Carolina, by act of

until within a few years past, the rule was, to sell the real estate absolutely, at auction, upon due no

1787, decrees in chancery for money are enforced by execution against the body, or the goods and chattels, lands and tenements, in like manner as at law. In the Roman law, the chattels were first to be resorted to, and the land was seised and eventually sold, provided the moveables of the debtor were found to be insufficient to satisfy the debt. Dig. 42. 1. 15. 2. and 3. Code, 8, 34. Though the personal property of the debtor is to be first resorted to and sold, there has been difficulty in reaching, by execution, moneys invested in stock and other choses in action. A mere chose in action is not at law the subject of a fi. fa. 6 Harr. & Johns. 264. 2 Iredell N. C. Rep. 129. A mere right in personal property, without possession, and held adversely, cannot be sold on execution. Carlos v. Ansley, Alabama Rep. N. S. vol. viii. 900. A mortgagee's interest cannot be sold on execution. See supra, p. 166, note. The court of chancery has assisted the judgment creditor at law, where the money had been fraudulently invested, or in trust for the debtor. But a judgment must first be shown in order to reach land, and an execution issued and returned nulla bona, in order to reach personal estate by the assistance of chancery. (Brinckerhoff v. Brown, 4 Johns. Ch. Rep. 671. McDermutt v. Strong, Id. 687. Ballentine v. Beall, 3 Scammon, 203. 3 Litt. Rep. 12. Moore v. Young, 1 Dana's Ken. Rep. 316,) unless the debtor is -deceased, (Thompson v. Brown, 4 Johns. Ch. Rep. 619,) or except the fund is accessible only by the aid of chancery. Marshall, Ch. J., in Russell v. Clarke, 7 Cranch, 89. See, also, Taylor v. Jones, 2 Atk. Rep. 600. Bayard v. Hoffman, 4 Johns. Ch. Rep. 450. Spader v. Davis, 5 ibid. 280. 20 Johns. Rep. 554. S. C. But while the remedy by ca. sa. existed, and the creditor had the debtor's body in execution, the ancillary remedy in chancery was suspended. Stillwell v. Van Epps, 1 Paige Rep. 615. According to the English doctrine, as now understood, the court of chancery will not go further than to apply equitable claims to the satisfaction of judgments at law; and it will not apply a debt due from A. as the debtor of B., to discharge a judgment of C. against B. Otley v. Price, 7 Price's Ex. Rep. 274. By the New-York Revised Statutes, vol. ii. 173, sec. 38, the court of chancery is authorized to apply, in satisfaction of debts at law, debts due to the defendant, after an execution at law has been returned nulla bona. This just and reasonable power is conformable to the rule of the Scotch law, under which money due to the debtor may be attached and appropriated to the payment of his debts. 1 Bell's Com. 6. The statute laws of Ohio, of Kentucky, and of Pennsylvania, have conferred the same power. See supra, vol. ii. 444. To protect personal property from being fraudulently withdrawn from the operation of judgments, it is a principle of law that a sale and transfer of it for the purpose of preventing a judgment creditor from appropriating it on execution, is deemed an act done mala fide and void as to such creditor. Streeper v. Eckart, 2 Wharton, 302. But in Wood v. Dixie, Q. B. June,

tice, without any previous appraisement, and without any subsequent right of redemption; and the sheriff executed a deed to the purchaser, which by relation vested the defendant's title in the purchaser from the time of the sale. The deed connected with the sale operated by way of execution of a statute power to pass the defendant's title. This is the practice in respect to sales of land on execution by the marshals, under the authority of the courts of the United States, by the act of congress of May 7, 1800; and this would appear to be the practice still, in the states of New-Jersey, Maryland, North Carolina, Tennessee, South Carolina, Georgia, Alabama, Louisiana, and Missouri. But sales of land on execution had been attended with so much oppressive speculation upon the necessities of the debtor,

1845, it was held that an agreement or assignment of property with an intent to defeat an execution creditor is not of itself fraudulent, if the assignment was in other respects complete. Sed quære?

If a creditor purchase his debtor's property in satisfaction of his own and other creditors with a large surplus to the exclusion of other creditors whose suits are pending, it is fraud. Peck v. Land, 2 Kelly, Geo. I. In New-York the unearned salary or perquisites of an office are not reached in chancery by a creditor's bill. It only reaches the salary and perquisites of the office earned and due at the time of filing the bill. McCoun v. Kernshall, 1 Clarke, 134. Browning v. Bettis, 8 Paige Rep. 568.

• Griffith's Register, h. t., No. 3. Elmer's Digest, 486. Davidson Frew, 3 Dev. N. C. Rep. 1 North Carolina Revised Statutes, 1837, p. 265. Childress v. Allin, 17 Louisiana Rep. 37. Statute Laws of Tennessee, 1836, p. 292, 293. Boring v. Lemmon, 5 Harr. & Johns. 225. Barney v. Patterson, 6 ibid. 204. Remington v. Linthicum, 14 Peters' Rep. 84. Estep v. Weems, 6 Gill & Johns. 303. Revised Laws of Missouri, 1835, p. 258, 259. Prince's Dig. of Laws of Georgia, 1837. Huggins v. Ketchum, 3 Battle's Rep. 414. In Alabama, their execution law is taken from the Virginia and Kentucky statutes, which give the fi. fa., ca. sa., and elegit. If the elegit be sued out, the defendant may elect the moiety of his lands to be extended. But the sheriff also sells land on execution under the fi. fa. and venditioni exponas. Aikin's Dig. of Alabama Statutes, 2d edit., p. 162, 163, and see post, p. 434. Ware v. Bradford, 2 Alabama Rep. N. S. 676. In North Carolina, it is left unsettled whether the elegit may still be sued out. 3 Der. Rep. 161. 4 Ibid., 133. The better opinion is, that it was done away since the statute of Geo. II. See infra, p. 436, in notis.