Oliver Taylor versus John Mixter.
In order to make a valid attachment of land, on mesne process, it is not necessary that the officer should enter upon, or go near the land, or do any act other than return that he has attached it.
A return by an officer, that “ he has attached all the right and interest of the debtor *31 any lands in the town of E,,? constitutes a valid attachment of any land coming within this general description.
Writ of entry. The case came before the Court upon a statement of facts.
In April 1829, the tenant sued out a writ against Benjamin Ruggles, upon which the officer who served it made a return, dated April 27, 1829, as follows : — “ By virtue of this writ I have attached all the right, title and interest, which the within named Ruggles has to his homestead on which he now dwells, together with all the land thereto belonging, lying in Enfield, in said county. Also all the right and interest which said Ruggles has to any lands lying in Enfield aforesaid,” &c.
In May 1829, the demandant sued out a writ against Ruggle.s, upon which the officer who served it made, a return, dated May 16, 1829, as follows : — “At the direction of the creditor, by -virtue of this writ, I attached all the right, title and interest that the within named Benjamin Ruggles has in the farm he now lives on. Also about twenty-five acres of land adjoining land of Charles Gardner, all situated in Enfield in the county of Hampshire. Also two pews,” &c.
The tenant and the demandant afterwards recovered judgment against Ruggles, and their respective executions were duly levied on the demanded premises, the demandant’s, on December 19, 1829, and the tenant’s, on January 4, 1830, and were duly recorded and returned. The tenant is now in possession, claiming to hold under the levy of his execution.
The demanded premises, at the time of the attachments above mentioned, were the property of Ruggles, and were a part, of the lot of twenty-five acres described in the return on the demandant’s writ against him ; the same having been devised some years since to Ruggles by his father, together with other lands upon which Ruggles lived at the time when the attachments were made. The 25 acre lot was separated from *348
the other lands by a highway and other farms intervening, and is situated more than half a mile therefrom. The other land? are divided by a road, and there are two houses thereon, one on each side of the road. Ruggles occupied one house and all the land on both sides of the road, with the exception of a small parcel on which the other house stood, in the occupation of a tenant. The 25 acre lot consists of pasture and woodland, and until the levy of the executions above mentioned, was occupied by Ruggles, and had been previously occupied by his father.
If the demandant was entitled to recover:, the tenant was to be defaulted ; otherwise, the demandant was to become non-suit.
The cause was argued in writing.
L. Strong, for the demandant.
If the 25 acre tract, upon which the tenant’s execution was levied, had not been previously attached upon his writ, it is plain that the demandant is entitled to recover. The demandant contends that it had not been previously so attached.
1. It was not a part of the “ homestead,” nor of “ the land thereto belonging.” Webster’s Dic. voc. Homestead.
2. It was not attached under the general words in the officer’s return, that he had attached all the debtor’s interest “in any lands lying in Enfield ” ; but that part of the return was invalid.
Attachments of real and personal estate, as known ir the early history of this commonwealth, seem to have been aialogous to the process by distress or attachment to compel an appearance, in various courts in England ; and if the defendant made default, there the property attached became forfeited to the Icing, and here probably might be taken upon the plaintiff’s execution; Gilb. on Distr. 18 ; Bond v. Ward, 7 Mass. R. 128 ; though upon the defendant’s appearance, the attachment, in either case, wa's defeated. Anc. Charters &c. 51. But by the colonial ordinance of 1650, it was ordered, that the attachment should remain until the judgment was satisfied, provided the execution was sued out and executed in one month after judgment. Ibid.
It is observable, that though a distress or attachment at corn*349mon law extended only to personal property, yet attachments here, from the earliest period, might be made also of real estate. Anc. Charters &c. 49. But the degree of precision requisite in the officer’s return, must have been the same in both cases, it being plain that the property attached must have been specified, for two reasons ; first, that it might distinctly appear what property passed by the adjudication of forfeiture or might be taken upon execution ; Lawrence v. Nethersall, Dyer, 199 ; and secondly, that it might further appear that the attachment, in- point of amount, was reasonable. St. Marlb. c. 4 ; 2 Inst. 106 ; Gilb. on Distr. 43 ; Hutchins v. Chambers, 1 Burr. 579.
We say then, that the officer’s return is insufficient to hold the property under the supposed attachment; —
1. Because it is evident that the officer was ignorant, at the time, of the existence of any such property.
It has often been questioned whether an actual entry by an officer was necessary ; but no one ever supposed that an attachment could be made of property until it was discovered.
2. Because in analogy to distresses- and attachments to compel an appearance at common law, the property attached should be so specified, that were it subject to forfeiture, an adjudication to that effect might be made at once.
3. Because the supposed attachment is void, as being against the policy of the law, in relation both to debtors and creditors.
First, in relation to debtors.
The form of our writs of attachment evidently supposes some certain limitation of the amount of property to be attached, whether goods or land ; and yet if this kind of return is to be allowed, there can be no limitation whatever. A creditor whose demand is for a small sum only, may encumber, by his attachment, property to a vast amount, and thus the transfer of real estate may be greatly and very unnecessarily embarrassed. While precision and particularity in the return of attachments is required, the existence of such attachments may be known, when the writs are returned ; but under this general form of return it cannot be determined, however inconsiderable the claim, whether the creditor will levy his execution upon land, or if he does, upen what land, until the exe*350cution is actually levied, or the attachment is lost. In the one case, creditors will be likely to attach so much, and so much only, as will be sufficient to secure their claims ; and in the other, the debtor’s whole real estate will be attached for the mere convenience of the officer.
Secondly, in relation to creditors.
The object of attachments is to secure the demands oí cred itors, and the law gives the right of attachment for this purpose, and this purpose only ; and property not attached by one creditor may be taken by another. The right therefore should be construed to be restricted, in some measure at least, by the security required.
Further, property which a vigilant creditor may discover, may be attached for his benefit; and it seems unimportant, whether it is personal or real estate ; and it is hardly to be supposed that this right, acquired by his vigilance, can be defeated by an imaginary prior attachment, when the property supposed to be attached was not known or might not be known, at the time, either to the creditor or to the officer, even to exist.
But it may perhaps be objected, that the Court having determined in Perrin v. Leverett, 13 Mass. R. 128, that actual entry is not essential to the validity of an attachment of real estate, it is idle to specify the different parcels of estate attached, as no benefit can result from such a course of proceeding ; and that so was the decision in Crosby v. Allyn, 5 Greenl. 453.
To this objection, however, several answers may be made
1. It is believed to have been the general practice in this commonwealth, as well since the case of Perrin v. Leverett as before, to specify the parcels of real estate attached ; and in all the counties of the state, except Essex, an actual entry by the officer was, until that decision, supposed to be necessary.
2. It was not decided in Perrin v. Leverett, that an actual entry or something equivalent to it, is not necessary to an attachment of real estate. But even if the principle, that ne entry is required, had been adopted, there is no necessary connexion between that principle and the position which the tenant is now disposed to maintain.
3. The case of Crosby v. Allyn was decided entirely on the *351ground, that what was uncertain might be made certain ; and as similar words in a deed would convey the grantor’s whole interest, whether more or less, the attachment was sufficiently certain, though the language of the return was somewhat unusual. But the ground taken by the court in that case, evidently supposes, that if an officer’s return is sufficient to cover the whole property of the debtor, no objection can be made to it on account of its generality and sweeping character, or of the extreme inconvenience to which it may often, and very unnecessarily, subject the debtor himself and his other creditors.
Sept. 29th
4. It is not true that no benefit will result from requiring a specification of the property attached ; since, if the return may be general, no debtor whose property has been attached, will be able to convey a foot of land, lying within the county, which is not under incumbrance.
C. A. Dewey (with whom was Knox) for the tenant.
On the point that the demanded premises were a part of the “ homestead,” or at least “of the land thereto belonging,” he cited Bacon v. Leonard, 4 Pick. 277 ; Jackson v. White, 8 Johns. R. 47 ; Doe v. Collins, 2 T. R. 498.
On the point, that the general words in the officer’s return constituted a valid attachment of the demanded premises, he cited and relied on Perrin v. Leverett, 13 Mass. R. 128 ; Ashmun v. Williams, 8 Pick. 402 ; Crosby v. Allyn, 5 Greenl. 453 ; Howard v. Daniels, 2 N. Hamp. R. 137 ; Ward v. Bartholomew, 6 Pick. 409 ; Jackson v. De Lancey, 11 Johns. R. 365.
Shaw C. J.
delivered the opinion of the Court. The tenant’s attachment having been prior in point of time, and followed up by a judgment and levy of execution, agreed to be correct, it is obvious from the facts, and is conceded in the argument, that if the attachment on mesne process was valid and effectual to bind the land, the demandant has no title.
The officer returned upon the tenant’s writ, that “he had attached all the right, title and interest of Ruggles, the debtor, to his homestead on which he now dwells, together with all the land thereto belonging, lying in Enfield in said county; also, all the right and interest which said Ruggles has to any lands lying in Enfield aforesaid. ”
*352It is urged in behalf of the demandant, that this return did not constitute an attachment, because, as it is contended from the facts agreed, the lot in question was no part of the homestead or of the lands belonging thereto, and so was not within the description of the lands mentioned in the first branch of the return ; and although consisting of lands lying within the town of Enfield, still that the last clause in the return is too loose and indefinite to constitute an attachment.
Upon the first point, whether, under the circumstances, the lot in question could be deemed a part of the homestead, we give no opinion. The case of Bacon v. Leonard, 4 Pick. 277, was relied on, as in point, for the support of the affirmative ; but upon careful comparison there seems little analogy between the two cases. That was an attachment of the homestead farm, and the material question considered was, whether, it being described as containing 30 acres, when in fact it contained 150, such misdescription avoided the attachment, and it was held that it did not. But “ homestead farm” may have a broader signification than homestead. Perhaps it would be putting too narrow a construction upon the term, to say with the demandant, that it must be the dwellinghouse or land actually contiguous to it, or to the land on which it stands. It may be detached and yet be so intimately connected with the dwelltnghouse as in effect to constitute part of it. The word is not one which has acquired a definite signification in the law ; and if used in England in this sense, it is probably used much less frequently, than in this country. And here it may be probably understood somewhat differently in different places, and it may, therefore, be necessary hereafter to consider it more fully.
But upon the other ground, the Court are all of opinion, that the attachment was valid and effectual.
Whatever may have been the doubts formerly entertained, since the decision of the case of Perrin v. Leverett, 13 Mass. R, 128, and upon the conclusive reasons there given for the decision, we consider it settled, that in order to make a valid attachment, the officer is under no necessity to enter upon the land, or see it, or go into its vicinity; nor is it necessary to da *353any act, other than return, that he has attached the land. There seems, therefore, to be no reason, why any description, however general and comprehensive its terms, which clearly embraces the land, and which would be sufficient to pass the land by a deed, should not bind it by attachment.
The analogy between the attachment on mesne process of real and personal property, though designated by the same term, is very slight. The early history of attachments of personal property in this commonwealth, as a security for a debt to be recovered, and the original connexion, or perhaps identity of this process with the writ of distringas at common law, and the rules applicable to the latter process, can go very little way in aiding us to a right construction of the rules affecting an attachment of real estate. We must, therefore, be governed in the construction of these rules, by usage and statute, the nature of the process and the reasons upon which it is allowed.
The object of this process, as it is now regulated by usage and by statute, is to give to the creditor, upon the commencement of his suit, a lien upon the real estate of his debtor. It is a branch of that system of policy, which charges the real estate of a debtor with the payment of his debts both during his life and at his decease. By the attachment, no estate passes, no interest vests in the creditor, neither the interest nor the' possession of the debtor is divested, nor does the officer or creditor acquire any right to take the issues or profits. It constitutes a real lien which can be made available to the creditor, only upon a compliance with various conditions, namely, that he shall recover a judgment in that suit, that he shall obtain no other satisfaction than by levying on the real estate, and that he shall make such levy within a limited time, and conform to the rules of law.
In almost all these respects, this process is distinguishable from an attachment of personal property, or distringas. In ihe latter, the officer must take the goods into his own custody, otherwise the security would not be effectual ; he must keep possession because he is to stand responsible to the creditor *354if he recovers judgment, otherwise to the debtor ; ho has a special property, because this is necessary to enable him to • defend his possession and perform the duties which the law imposes on him.
. Most of these distinctions are founded on the locality, and consequently fixed and immutable character of real estate. The acts of seisin and possession, therefore, necessary to give effect to an attachment of personal property, are wholly unnecessary in regard to real estate, and ad impossibilia seu vana lex non cogit. Hence it has been held, that when the legal character of the property is personal, but its physical character fixed, as of a building erected by one, with the consent of the owner of the soil, upon the land of another, continued possession was not necessary to give effect to the attachment. Ashmun v. Williams, 8 Pick. 402. There is a manifest distinction in principle between a process, which divests the title of the debtor and transfers the property against his will, and one which merely creates a lien. In the former, therefore, the estate is to be set off by metes and bounds, or otherwise with as much precision as the nature of the property will admit. Tate v. Anderson, 9 Mass. R. 92 ; Howard v. Daniels, 2 N. Hamp. R. 137 ; Crosby v. Allyn, 5 Greenl. 453 ; Fenny v. Durant, 1 Barn. & Ald. 40. It seems, therefore, upon principle, that any words which shall clearly designate and comprehend the property attached, is sufficient. This rule is . adopted in relation to a grant of one’s own property, where the grantor has the general power of disposing, though it might be otherwise in respect to the deed of an officer, or other person acting in the execution of a special authority. Jackson v. De Lancey, 11 Johns. R. 373. That such a general description is sufficient in an attachment, has been decided in Maine and New Hampshire. Crosby v. Allyn, 5 Greenl. 453 ; Howard v. Daniels, 2 N. Hamp. R. 137.
The argument from inconvenience is strongly pressed upon the consideration of the Court; and it is said, not indeed to be against the letter of the law, for there is no express rule on the subject, but against the policy of the law, that a large amount of property should be incumbered by an attachment, perhaps for a small debt. But it is not perceived how this evil, if il *355De one, is to be guarded against, by requiring a more precise description, or specific designation of the property attached, unless indeed by making the act of attachment more burden some, and the return more voluminous. Had the tenant caused an attachment of his debtor’s interest in twenty or a hundred different parcels of estate to be made, it is not' contended that the attachment would not have been effectual, had they been specifically returned. The creditor could not know previously, whether his debtor had any interest, or if he had, that it was not incumbered by prior attachments. The security of debtors, and of other attaching creditors, is to be found in this, that whatever may be the extent of the attachment, the estate can be ultimately charged to the amount only of the creditor’s real debt. Requiring a more specific return, therefore, would not guard against the evil, if it be one.
As it seems clear, that an attachment is not required, like a levy, to be made -by metes and bounds, that the general description used in this return would be sufficient to pass the land in a grant by the owner ; as this affords a plain, intelligible, practical rule, drawn from an analogous case, we think it would be going too far to say, that an attachment in general words, clearly comprehending the premises, was wholly inoperative and void; we are therefore of opinion, that the tenant had the elder attachment and the better title, and that the demandant must be nonsuit.