The action was continued, nisi, and the opinion of the Court prepared by
Weston C. J.'From the evidence reported, and the finding of the jury, there can be no doubt the land in controversy, is the *89property of the plaintiff; and if he had brought a writ of entry to recover possession, ho would have been entitled to a verdict and judgment in his favor. From the nature of the remedy, he has thought proper to pursue, for an injiuy like that alleged in the declaration, it can be maintained only by the tenant in possession. It is urged that the plaintiff, as the lessor, might sustain an action against the defendant for Iiis levy, as an usurpation of the fee; but that is not charged in the declaration ; and it cannot bo inserted by way of amendment, being for a a new cause of action. This suit is for cutting the grass upon the land, the year following the levy. In Campbell v. Procter, 6 Greenl. 12, the late Chief Justice permitted a count to be added to the plaintiff’s declaration, charging an usurpation of the fee. The amendment was objected to, as a now cause of action. As however the case went off upon another point, no decision was had upon the correctness of the amendment. That action was for a trespass, quare clausum, in entering to make the levy, and the same act was charged in the amended count, as an usurpation of the fee. This is for an alleged trespass upon the land several months after the levy.
The levy by the defendant was either a nullity, or it put him in the seizin, although not by right, of at least a freehold. If a nullity, because the judgment debtor had no estate, upon which a levy could be made, it left the lessor and the lessee as they were before. The case does not find that the lessee, Woodman, did any act inconsistent with his duty, when the levy was made, by which his tenancy at will would be determined. In Campbell v. Procter, the tenant, instead of notifying the execution creditor that he was but a tenant at will, pointed out the land he so held, to be levied on as his property, and was otherwise active in aiding the levy. This was very properly held such a desertion of duty, as determined his tenancy. An estate for years does not pass to the execution creditor by a levy, much less a tenancy at will. Chapman v. Gray, 15 Mass. R. 439.
The evidence is, that Woodman, the tenant, continued in possession of the land, receiving the profits to his own use as before, after the date of his deed to the plaintiff in 1829, and that the *90plaintiff never was in the actual possession of any part of it. The jury have found that Woodman was tenant at will at the time of the trespass. And this of itself would defeat the plaintiff’s action. Little v. Palister, 6 Greenl. 6. Another part of their finding, hardly consistent with this is, that he had actual possession up to the time of the levy, but not at the time of the tress-pass. They probably intended to find, that his possession was divested by the levy.
But the better opinion seems to be, from the authorities, that where an execution creditor levies upon land, of which his debt- or is in possession, he thereby acquires a seizin, although defeasa-ble, if the land belongs to another. Chapman v. Gray, before cited. Gookin v. Whittieer, 4 Greenl. 16; Allen v. Thayer, 17 Mass. R. 299. Upon this view of the case, the plaintiff was disseised by the levy, and could not prosecute an action for any act of the disseisor subsequent to the levy, until he had entered, or recovered judgment for the land. And upon the whole case, the opinion of the court is, that the plaintiff had not such a possession, as would enable him to maintain this action.
Judgment on the verdict.