Elihu Smith versus Maria Juliana Saxton.
The St, 1783, c. 44, § 3, prohibits sheriffs from making or filling up any plaint, deo laration, writ, or process, and provides, that66 all such acts done by either of them shall be void.” A writ and declaration were written by a deputy sheriff, an attachment of land made upon the writ, and the land seasonably set off on an execution issued on a judgment recovered in the suit. Subsequently to the attachment, and previously to the judgment, the debtor conveyed the land to a bond jide purchaser for a good consideration. It was held, that this conveyance defeated the attachment, and that the title of the purchaser was good against the judgment creditor.
Ji seems that as between the parties such judgment is good.
This was a real action in which the demandant claimed half an acre of land in Deerfield, counting on his own seisin within thirty years, and a disseisin by the tenant. The plea was nul disseisin.
At the trial, before Morton J., the demandant produced a writ in his favor against H. W. Strong, dated May 25, 1824, on which the land demanded was attached the same day. The action was entered at the August term 1824, and there being no appearance, was continued on the plaintiff’s motion to November term 1824, when the defendant was defaulted and judgment given for the plaintiff for 316 dollars 94 cents and costs. The execution which issued on this judgment was levied on the demanded premises December 24, 1824.
The tenant gave in evidence a deed of release of the land demanded, from Strong to Joel Saxton, dated July 17, 1824, and a deed of the same land from Joel Saxton to the tenant, dated July 20, 1824 The tenant called Strong, who testified that about twenty-six years ago, he agreed- to sell the land to Joel Saxton, and gave him a bond, the condition of which was that Strong should convey the land to Saxton when he paid for it ; that Saxton had occupied the land ever since ; that he, Strong, became insolvent July 12, 1824, and soon after, thinking that Saxton had nearly or quite paid for the land in his labor, though no settlement had been made between them, executed the deed to Saxton, and sent it to him by mail.
The demand on which the demandant’s attachment was made, was a note given by Strong to Austin Smith, and b> *487him indorsed to the plaintiff; and evidence was offered tending to show that Austin Smith was the real owner of the note at the time of the attachment, and had received part of the amount due on it after that time; and had obtained anotner judgment on it in the name of another person as indorsee, previously to the judgment obtained by the demandant.
Sept. 25th.
It also appeared that the writ on which the land was attached by the demandant, and the declaration in it, were in the handwriting of Austin Smith, who was a deputy sheriff and served the writ. The counsel for the tenant contended, that the writ and attachment were, on this account, void as against her. If they were void, or for this cause might be avoided by the tenant, the demandant agreed to become non-suit.
Billings and Dewey, for the demandant.
The word void in St. 1783, c. 44, § 3, means voidable. In order to avoid the process, because the writ and declaration were in the handwriting of a deputy sheriff, the matter should have been pleaded by Strong in the original action. It is now too late to take advantage of it. The judgment of the court can only be vacated by a writ of error brought by Strong himself, and is as binding on the tenant as it is on him. They cited Commonwealth v. Pejepscut Proprietors, 7 Mass. R. 430; Prigg v. Adams, 2 Salk. 674; Co. Litt. 259; Cooke v. Gibbs, 3 Mass. R. 193; Keen v. Turner, 13 Mass. R. 265; Peck v. Woodbridge, 3 Day, 30; Homer v. Fish, 1 Pick. 435; Loring v. Mansfield, 17 Mass. R. 394; Smith v. Lewis, 3 Johns. R. 157; Thatcher v. Gammon, 12 Mass. R. 268; Andrews v. Linton, 2 Ld. Raym. 885; Com. Dig. Pleader, B 3; Prescott v. Tufts, 7 Mass. R. 209; Whelpdale's Case, 5 Co. 119; Bull. N. P. 224; Merchants' Bank v. Cook, 4 Pick. 411.
The tenant in this case, being grantee and privy in estate to Strong, is estopped from avoiding the judgment against him. Co. Litt. 352 a; Com. Dig. Estoppel, B; Phil. Ev. 245. But if the doctrine of estoppel does not apply, the tenant cannot in this mode take any advantage of this defect, as the judgment can only be avoided in the three ways mentioned in 1 Stark on Ev. 253.
*488April term 1829.
D. Wells and Ashmun, for the tenant.
The attachment is void if the statute is construed as it should be, according to its natural import. The difference between erroneous and void proceedings, is well settled ; erroneous require to be avoided, but a void process is a nullity. The proceedings in this case were absolutely void, not merely voidable. They cited Per-kin v. Proctor, 2 Wils. 385; Turner v. Felgate, Lev. 95; Prigg v. Adams, Carth. 274; Lincoln College’s Case, 3 Co. 59; St. 1 Eliz. c. 10; Bishop of Salisbury’s Case, 10 Co. 59 a; Smalwood v. Coventry, Cro. Eliz. 207; St. 13 Eliz. c. 6; Co. Litl 45; Winchcombe v. Winchester, Hob. 165; Doe v. Barber, 2 T. R. 749; Crosley v. Arkwright, 2 T. R. 603; Lowe v. Waller, 2 Doug. 736; Green v. Kemp, 13 Mass. R. 515; St. 1784, c. 29, § 13 ; St. 27 Eliz. c. 4; Preston v. Crofut, 1 Connect. R. 527, in note; Roberts v. Anderson, 3 Johns. Ch. R. 371. The policy of the statute, which was designed to prevent fraud on the part of the officer, requires that the word void should be construed strictly ; otherwise the statute would be of no avail. It was intended, not to protect the defendant, for he is sufficiently protected without this statute, but to protect third persons, like the tenant in this case, from collusion between the plaintiff, the defendant and the officer. One object of this statute is to prevent litigation, which is always a favorite object of the law. St. 1811, c. 62 ; Anc. Charters &c. 617. Even if the word void in the statute is to be construed voidable, the process must be voidable by creditors. Peirce v. Jackson, 6 Mass. R. 242. If it is voidable by the debtor only, he has avoided the attachment by his deed. Crosley v. Arkwright, 2 T. R. 603. Though the defendant cannot avoid a judgment except by error, strangers may do it collaterally by plea. Warter v. Perry, Cro. Eliz. 199; Proctor v. Johnson, 2 Salk. 600; S. C. Ld. Raym. 669; Burt v. Sternburgh, 4 Cowen, 557. But the title of the tenant takes place of the attachment, and precedes the judgment.
The opinion of. the Court was delivered by
Parker C. J.
We are of opinion that the attachment made under the writ in favor of the demandant, on which judgment was rendered and levy made on the demanded premises. *489cannot avail against the tenant’s title under the deed of H. W. Strong, the judgment debtor, to Joel Saxton, connected with the original contract for the purchase of the land and the continued possession of Saxton for twenty-six years, and the consideration paid according to that contract.
It appears in the case reported, that the writ above mentioned was made out by the brother of the demandant, then a deputy sheriff, and there is reason to believe that this was done without any authority from the demandant, and even without his knowledge ; so that the presumption arising from that and other circumstances in the case, is very strong, that the deputy sheriff himself, who filled out the writ, and not the demandant, had the property of the note at the time when the writ was served. But without regarding these circumstances, we consider the provision of the St. 1783, c. 44, § 3, as decisive against the claim of the demandant. The provision is, that “ no sheriff or his deputy shall be allowed to draw, make or fill up any plaint, declaration, writ or process, or to draw or make any plea for any other person ; but all such acts done by either of them shall be void.” If void according to the terms of the statute, then all proceedings under a writ so made out must be entirely nugatory, and there would be nothing to intercept the tenant’s title. But it has been argued, that by judicial construction of like words in British acts of parliament and Massachusetts statutes, the extent and force of the term void have been limited, so that in truth it means voidable, or to be made void by some plea or act of the party in favor of whose interests such statutes are set up. And there is no doubt that such decisions have taken place both here and in England, and that they are founded in good sense and reason, and conform to the intention of the legislature in their use of the term. An infant’s acts, by the common law, are said to he void, and yet they may be confirmed on his coming of age ; which is inconsistent with their absolute nullity. Usurious debts and gaming contracts are declared to be void, and yet *490a plea is necessary to avoid- them, and a judgment precludes a party from showing they were void. The cases cited by the demandant’s counsel sufficiently establish this point. But this case is distinguishable from any of those cited, for the defence does not seek to avoid the judgment upon a writ which the debtor did not himself see fit to avoid by plea or motion to the court, but only that the rights of the tenant shall not be injuriously affected by an act which the statute had peremptorily prohibited and declared to be void.
One of the objects of the legislature in making this provision probably was, to prevent unjust preferences in attachments by the instrumentality of sheriffs or their deputies, who have great opportunities and means of defrauding creditors by secret attachments. In most cases the parties to the action would be privy to the doings of the sheriff, and in all cases the plaintiff m the suit would be presumed to have authorized his acts. Subsequent attaching creditors and purchasers, knowing of such writs, have a right to consider them void, and if they can be made good by the consent of the debtor to suffer judgment, the intention of the legislature would be frustrated. Third parties'then so situated must have a right to question the validity of such attachments, and there is no other way of exercising that right, than by showing the fact when the title founded upon the attachment shall be set up against them. There is no need, for this purpose, of avoiding the judgment ; that may be conclusive between the parties to it, but the levy, which is good only in virtue of the attachment, may be avoided, and the judgment creditor made to seek satisfaction from some other property.
The title remained in Strong, notwithstanding the attachment, until the execution of his deed to Joel Saxton. Strong parted with his right by that deed to Saxton, who was in possession with an equitable title to the land, which he could have enforced upon his bond by a bill in equity. The question is, whether the attachment was an incumbrance or lien which could afterwards be converted into a title by the levy. It was no incumbrance against a bond fide purchaser, because by statute the writ and attachment were void, and in regard to *491Saxton were avoided by the conveyance to him. If Strong should attempt to avoid the judgment by error, then the cases which have been cited will apply.