In other cases which might have arisen, as where the disseizor enfeoffed another for life, the right of entry of the disseizee was not lost; and if the rule in Liford's Case still held good, it can only be explained on the ground that it was not a trespass to receive a feoffinent from the disseizor.

But this doctrine of the operation of a disseizin has been abolished by statute in England. See 1 Stephens, Com. 510 (7th ed.). And it is said that the effect of a descent cast in tolling the entry of the disseizee does not prevail in this country. 3 Washb. Real Prop. 120. But this, it seems, is not true in Massachusetts. See Emerson v. Thompson, 2 Pick. 473. In this case it was decided that the St. of 32 Hen. 8, c. 33, above referred to, was in force in Massachusetts, so that the disseizee's right of entry was not tolled unless the disseizor had had five years peaceable possession before his death; but it was conceded that after five years the right of entry would be lost.

This case of Emerson v. Thompson was trespass against the heirs of a disseizor (who had not held peaceably for five years) for mesne profits from the time of the descent, or at least from the time of the issuance of a writ of entry, until judgment of possession and actual entry thereunder, a period of nearly two years. Judgment was given for the profits accruing from the date of the writ; thus establishing a relation from the actual entry. The defendants had entered only the day before the writ of entry was issued, and (the point being of such slight importance) it was left undecided whether

The case therefore did not touch the doctrine of the dictum in Liford's Case, though the majority of the court seem to have thought that rule rather harsh, and not to be extended. The ground of the decision in favor of the relation was, that the proceedings under the writ of entry were regarded as equivalent to those in the action of ejectment, except that in the former the right of possession was not in issue (Cox v. Callender, 9 Mass. 533), which right had been established in the present action for mesne profits; and as judgment in ejectment was conclusive of the right to the profits from the commencement of the action, the same would be true under the evidence of the present case. This was, however, strongly controverted in a dissenting opinion by Putnam, J.

All of the old authorities bearing upon the dictum of Coke are incidentally considered in this case. Among those which sustain the dictum are the following: Symons v. Symons, Hetley, 66; Bro. Abr. Trespass, pl. 35; Bac. Abr. Trespass, G. 2; and several cases from the Year-Books. In Gilbert, Tenures, 50, it is said that the old law was in conformity with the opinion of Lord Coke; and he assigns as a reason why the feoffee's title was formerly allowed, though he came in by wrong, or colorable title, that the feoffee anciently paid a fine to the lord.1 The law as declared in Holcomb v. Rawlyns, supra, is, on the other hand, thought correct in 2 Rol. Abr. 554, Trespass by Relation; Gilbert, Tenures, 47, 50; Comyns's Dig. Trespass, B. 2; Buller, N. P. 87. The doctrine of Lord Coke is again

cited with approval in Stanley v. Gaylord, 1 Cush. 536, 557, by the same learned judge who delivered the opinion of the court in Emerson v. Thompson; and though this was in a dissenting opinion, it was upon a point not controverted by the majority.

And it may still be a question in those States in which the common-law doctrine of the bar of entry by descent cast has not been adopted, whether an action for mesne profits can be maintalned against the heir or alienee of a disseizor; in other words, whether the fiction of relation by entry should be extended to such cases. It is difficult to see how such a party can be regarded as a trespasser, even by the use of the fiction. The proper function of the relation is simply to give the plaintiff the requisite possession at the time of the trespass, and not to change the character of the defendant's act. There must have been a trespass; and unless the acquisition of title from a disseizor can be regarded as a trespass, the defendant cannot be liable.

The case is unlike that of personal property conveyed by one having no title or authority, for such purchaser acquires no interest and may well be held a trespasser for refusing to surrender it to the owner; but a disseizor has an actual estate, —an estate which may become indefeasible by the lapse of time.

But though at common law the alienee of a disseizor could not, as the weight of authority inclines, be held liable in trespass for mesne profits, it did not follow that the title to the profits, not consumed by him, were in him; and the contrary was decided in Liford's Case. "If the feoffee or lessee," said the court, or the second disseizor sows the land, or cuts down trees or grass,

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and severs and carries away, or sells them to another, yet after the regress of the disseizee, he may take as well the corn as the trees and grass, to what place soever they are carried; for the regress of the disseizee has relation as to the property, to continue the freehold against them all in the disseizee ab initio, and the carrying them out cannot alter the property. And if the disseizee takes them, they shall be recouped in damages against the disseizor."

Though the law favors the owner of lands who has been dispossessed of them to such an extent as to give him a right of action for mesne profits by relation against the party who originally entered, he must have actually entered or have become placed in a situation equivalent to an entry. In Allen v. Thayer, 17 Mass. 299, the plaintiff sought to recover mesne profits of the defendant, who had originally been a tenant of the plaintiff. While the defendant was in this situation, certain creditors of the plaintiff levied upon the land and had it appraised and set off to them. The defendant was expelled, but was permitted to re-enter as tenant of the creditors, and finally purchased the reversion of them in fee. Afterwards it was discovered that the deed to the creditors was defective and void; and thereupon other creditors of the plaintiff levied upon the premises, and held it against the first creditors and the defendant. The plaintiff supposed the defendant liable to him for the mesne profits between the two levies, either in assumpsit for the use and occupation or in trespass; but the court held the contrary. The ground of decision was that the defendant was not liable in assumpsit because after the first levy he no longer held of the plaintiff; and the defect in the title did

not restore him to privity with the plaintiff. And he could not maintain trespass, because he had been disseized, and had never re-entered, though he might have done so. The effect of the decision is, that such a party must enter himself, and can take no benefit from the levy and entry of another, who acts upon the invalidity of the original dispossession and conveyance. So, too, a judgment against the tenant in a writ of entry brought in the name of several coheirs, at their joint expense, to try the title, will not enure to the benefit of another of those coheirs in an action of trespass for mesne profits. Allen v. Carter, 8 Pick. 175.

But it is held that a regular and complete levy under an execution will give such a possession as will be sufficient to maintain trespass without an actual entry by the creditor. Langdon v. Potter, 3 Mass. 215; Gore v. Brazier, ib. 523; Munroe v. Luke, 1 Met. 459,

462.

Langdon v. Potter was an action of trespass quare clausum. It did not appear that the plaintiff had any other possession of the close, or right to the issues and profits, than such as he derived from a due levy against the defendant, and a proper return and register of the execution. The defendant, the execution debtor, had continued in the actual possession ever since the levy; and it was accordingly argued for the defendant, upon the supposed analogy of the extent of an elegit, that the plaintiff could not maintain trespass. But the objection was overruled.

The opinion of the court in this case is both interesting and important for the purposes of this note, and we quote at length from it. "The objection to the sufficiency of the plaintiff's evi

dence," said Parsons, C. J., speaking for the court," is founded on the position that the levy of the execution and its return and registry do not amount to an actual livery of seizin and of possession, to enable the plaintiff to maintain trespass against the defendant Potter for continuing his possession; but that the plaintiff, after the levy, ought to have made an actual entry before he commenced his suit. And this position is supposed to be justified by the principles of the common law which apply to the extent of an elegit on a moiety of the debtor's lands. For the sheriff returns on the elegit that he had delivered a moiety of the lands to the plaintiff, which delivery does not give the plaintiff the actual possession, but only a right of entry and of possession. In the levy of an execution on lands two things are to be considered, — the authority of the sheriff, and the rights of the plaintiff resulting from the legal exercise of that authority. In the case of an elegit, the plaintiff's right under the extent is correctly stated in the objection; and this right results from the authority of the sheriff, and from the manner in which it is exercised. It is the sheriff's duty to impannel a jury, who, on oath, inquire what freehold lands the defendant holds within his bailiwick, and fix the yearly value of them. When the jury have ascertained the lands, and appraised their yearly value, the sheriff delivers just one moiety, according to that appraisement, to the plaintiff, to hold until out of the annual profits, as valued by the jury, be receive his debt and interest. The inquisition is then returned and entered of record in the court whence the elegit issued. If the sheriff had in fact put the defendant out of, and the plaintiff in, possession under the inquisition, which

seems anciently to have been the practice, it was supposed that the defendant had no remedy, if the sheriff's proceedings were irregular, but by moving to set aside the inquisition, because the plaintiff was in possession by a title on record. The rule was therefore established that the delivery by the sheriff of the lands to the plaintiff was a complete execution of his authority, without dispossessing the defendant; and that the plaintiff's right was a right of entry and of possession. The plaintiff, having this right, might bring an ejectione firma, and eject the defendant; or he might enter peaceably and retain the possession without being considered as a wrong-doer. . . . Let us now advert to our statutes making real estate liable to pay debts, and providing for the taking of it in execution [which statutes are probably the same in substance as those that prevail in other States]. The execution may be levied on all the freehold estate of the defendant, and in one case on the rents and profits. When the execution is levied on real estate, all the defendant's title to and interest in the estate is transferred to and becomes the property of the plaintiff, at a reasonable appraisement of the value. In levying the execution, the sheriff proceeds without the intervention of a jury. The plaintiff shows him certain lands as the estate of the defendant, and directs the sheriff to satisfy the execution by a levy on those lands. Three freeholders are then selected, one by the plaintiff and two by the sheriff, if the defendant neglect to choose one, which he may do. These freeholders on oath appraise the land, or so much thereof as is equal in value to the execution and the charges of levying, describing by metes and bounds the lands thus appraised. The officer

is then expressly directed to deliver possession and seizin of the appraised lands to the creditor. It is also provided that the execution, when returned and registered, pursuant to the statute, shall make as good a title to such creditor, his heirs and assigns, as the debtor had therein. The creditor, therefore, is the purchaser of the estate for the full value, according to the appraisement of it by disinterested freeholders; he has the possession and seizin of it, and his title is as good as the debtor had. Although there may be a concurrent possession, there cannot be a concurrent seizin of lands [except in cases of disseizin by election. See Slater v. Rawson, 6 Met. 439, 444]; and, as livery of seizin is made to the plaintiff, the defendant can no longer continue seized, and he [the plaintiff'] only being seized, the possession must be adjudged to be in him because he has the right [see per Maule, J., in Jones v. Chapman, 2 Ex. 803; supra, p. 352]; and, having the actual and rightful possession, he is immediately entitled to the profits against the defendant. If the defendant shall, notwithstanding, continue his former possession, it will be an injury to the possession of the plaintiff, who may maintain trespass for that injury. This conclusion results from construing the statute according to the natural import of the words. But justice to the plaintiff requires this construction. He has purchased and paid for the land in the state in which it was in, with all the crops growing at the time of the appraisement; and his execution is satisfied. To consider him, therefore, as not actually seized, and entitled to receive the profits by force of the levy, but driven to an action if the defendant choose to resist his entry, will be to