The opinion of the Court was by
Shepley J.The title of the tenant is derived from Ephraim T. Morrill, who on the thirteenth of June, 1837, conveyed the premises to Philip Morrill, who on the sixteenth of the same month conveyed in mortgage to the tenant. The consideration of the latter conveyance was the discharge of a former mortgage held by the tenant on the dwellinghouse of the mortgagor, which was afterward conveyed to Joseph Williamson. Before the tenant released his mortgage on the dwellinghouse and received one on the premises instead of it, an attachment had been made on the twenty-fifil of January, preceding, on a writ in favor of Alfred Johnson against Ephraim T. Morrill, Philip Morrill and Joseph Williamson, of all their real estate in the county of Waldo. That suit was prosecuted to judgment and the execution issued thereon in consequence of an agreement between Messrs. Johnson and Williamson was levied on the demanded premises for the benefit of Williamson, who was surety for the Morrills. Johnson released his title acquired by the levy, to Williamson, who conveyed with covenants of warranty to the demandant. The attachment having been made before the grantor of the tenant acquired any title, the demandant must prevail, if the levy was legally made and the title under it passed to him. The effect may be, that the tenant will lose a debt, which was secured, and that Williamson will be saved from a loss as surety, where he had no security. And this after he had been benefited by a discharge of the mortgage on the dwellinghouse. The agreed statement does not impute any fraud, and such results cannot change the law or the legal rights of the parties.
It is contended, that the execution was satisfied before the levy was made. The written agreement between Messrs. Johnson and Williamson was produced at the argument and received by consent. The operation of it was the same as an assignment of the judgment and execution to Williamson, he *227giving security to Johnson, that his debt should be paid. The note of Carlton was pledged as collateral security, that Williamson would pay, not delivered to Johnson in payment. In the cases cited by the counsel for the tenant, there was a receipt of money for the purpose of paying the debt. Here the debt was not in fact paid to the creditor until the note deposited as security was paid.
The return of the officer, who made the levy, is alleged to be defective in stating, that the appraisers were freeholders of instead of in the county. The argument is, that it was intended, that the appraisers should not only be freeholders, but that their estates should be situate in the county. Such a construction would allow the creditor and officer to select appraisers from a distant part of the State or even out of it, and ignorant of the value of land so far, as they would not be informed of it by being owners of land in the county. And they might have become owners by taking it in payment of debts in a manner that would afford little information. Such a selection might be expensive and oppressive to the debtor, who also might select an appraiser resident without the officer’s precinct, and where he could not notify him. The design of the statute appears to have been, that they should be freeholders, and that they should be residents within the county. Neither party could then act oppressively toward the other, the officer could notify, and the appraisers might be supposed to have a better knowledge of the value of lands in the county whore they resided.
Another alleged defect in the levy is, that the officer does not in his return state, that the debtor neglected or refused to appoint an appraiser, although he appointed two himself. When the officer is required to notify the debtor to appoint an appraiser he must return, that he has neglected or refused to appoint to prove his authority to appoint one for him. But there are cases, in which our statute does not require the debtor should have notice to appoint. And in those cases it is necessary, that the officer should return such facts as would prove his authority to appoint without notice to the debtor. The *228officer -is required to notify “ if the debtor be living in the county, in which such land lies.” In this case the officer does return such facts as prove his authority to- appoint for the debtor ; and that is all that the statute requires. The officer not being required to notify the debtor, because he did not live within the county, and not having done so, could not truly state in his return, that he had neglected or refused to choose.
Another objection insisted upon at the argument is, that the title acquired by the levy, was not conveyed to the demandant, because Williamson and Johnson were disseized at the time they conveyed. When an execution is legally levied on lands liable to be taken, and the proceedings are duly returned and recorded the creditor is considered as having the actual seizin and possession. Gore v. Brazier, 3 Mass. R. 537. There is no proof in this case to rebut the legal presumption of its continuance in the creditor and his grantee until after the conveyances were made.
Judgment on the verdict.