The opinion of the Court was drawn up by
Kent, J.In this writ of entry, the demandant claims " one undivided half of a certain gristmill, and one undivided half of the land on which it stands.” He traces a title to himself in the premises, unless a title to the same passed by the levy introduced. The question of the construction to be given to the .language of that levy was before the Court in the case of Jewett v. Whitney, 43 Maine, 242. It was then determined, after full argument, that "the defendant, by means of the levy, acquired no title to the mill or to the land on which it stands.” This is the estate claimed in the writ. We see no good reason for reversing that de*243cisión. It is true, that, in the argument now presented, a point is made, which does not appear to have been presented or considered in the former case. It is now urged, that the exception "of the g'ristmill now standing on said premises” amounts to an exception of all that was included, in the levy — being in effect an exception of the mill, land and water privilege, and therefore void. It is contended that, an exception must be of a part of the thing granted, and that if it extends to the whole it will be void, as being absurd.
However correct this proposition may be, as an abstract principle of law, it does not appear in this case, from the description of the premises set out in the levy, that no part of the land could be used or separated from the mill privilege. No evidence was given on that subject, and there is no plan or description of the premises, by which the fact can be established. The demandant claims only the mill and the land on which it stands. The description in the levy, by metes and bounds, refers to " a road,” and to stakes and stones, showing that a portion of land on the shore was included, and not merely the land on which the mill stands. The appraisement also declares, that it is a tract of land with half a water privilege,— said piece of land being bounded as follows, <fec., and concludes with the words, "which said tract of land and water privilege we have appraised,” &c. In this state of the case, we are not called upon to determine how far the general principle, above alluded to, would apply in case of a reservation or exception, covering, in fact, all that was before taken, made in a levy, and not in a grant. There may be reasons why a voluntary grantor should not avail himself of an exception, which in effect revoked the entire grant, which do not apply to a title by levy. It would be not merely unjust, but apparently absurd, for a man to make a grant by deed, and, in the same deed, to revoke or except from its operation every thing which he had before granted. But a levy, although a statute conveyance, is a proceeding in invitum. The debtor is not a willing or *244an active participator in passing the title from himself to his creditor. The creditor most see that all the requirements of the statute are complied with, and, if he fail, through any deficiency of description, or in any preliminary proceedings, he will not succeed in his attempt to obtain a title. The levy must be such in itself that the estate, whatever it is, is thereby divested from the debtor. It may certainly be a grave question, whether a levy, which is felo de se, by its terms or its exceptions, can be made vital and operative to pass the estate, on the ground that the exceptions are inconsistent, and nullify the conveyance, first intended, by the appraisers. The creditor may reject such a levy, but, if he accepts it, must he not be bound by its terms, and claim only what he has lawfully acquired within the terms of the statute ? If, for any cause, he does not have a good and clear title set out to him by the levy, he simply fails to acquire what he undertook to obtain, and the estate remains, as before, in his debtor. In case of a grant by deed, the law presumes that the party intended to convey something. In case of a levy, there is no presumption, as there is no voluntary conveyance, and the party must rely upon the return of the appraisers and the officer to give him an estate, not invalidated or rendered void by exceptions or qualifications. These views appear to us reasonable and correct, but, as before stated, the present case does not call necessarily for a decision on this point.
The tenants also claimed that their ancestors acquired a title to the premises sued for, by an adverse possession of twenty years before suit, and except to the ruling of the Judge, that the transient seizin, delivered to Whitney by the officer who made the levy, the possession of Barrows not being interfered with, was not such a possession as to constitute a disseizin of Barrows.
The Judge, on the whole case, further instructed the jury, " that the evidence in the case, on the question of title, would authorize them to find a verdict for the demandant.” *245This ruling is undoubtedly broad and comprehensive. The question is, whether it was, on the facts proved, erroneous.
The tenants do not contend that prior to 1841, which was but seventeen years before this action was commenced, there was any actual possession and holding by Whitney. But they claim that, by the levy, Whitney acquired actual seizin and possession, and that the legal and just presumption is, that this seizin of the creditor continued in himself, and those claiming under him, for more than tAArenty years, in succession, before the date of the writ.
Whatever might be the effect of such proceedings upon the question of an adverse, continuous seizin and possession of tAventy years, in cases Avhere the premises demanded are clearly included in the levy, it is manifest, that nothing short of an actual and adverse occupation by the creditor of the portion which he claimed to be included, but which is found on trial not to have been so included in the levy, can establish a title by adverse occupancy. The ground on which a seizin and legal possession of the Avhole tract is inferred from the recording of a deed and the occupancy of a part is, that the deed covers and describes the whole tract, and thus gives notice to all of the extent of the grantee’s claim. But it Avould hardly be contended, in such case, or in case of a levy, where there has been no actual possession and holding, by himself or tenant, of any part of the premises, that the seizin and momentary possession, inferred from the act of the officer, could extend to that portion which was'not, in fact, included in the description of the estate.
The ^ecision being, that the gristmill and the land on which it stands were not included in the levy, no seizin of that part was ever delivered to the creditor by the officer. It is outside of that levy — was never a part of it, and the title remained in the debtor. If the creditor, believing and assuming that the gristmill, &c., was included in his levy, had taken actual and immediate possession of it, and had kept that possession openly, notoriously, exclusively and adversely to every one, claiming it as his own for twenty years, *246he might acquire a right thereto, which would avail him against every one. But he would acquire this right solely by virtue of his adverse possession, and not by virtue of anything contained in his levy.
The ruling of the Judge, on the question of title, was therefore correct.
It would seem, from the exceptions, that a question was raised by the pleadings and upon the evidence in relation to "betterments.” The case, as reported, does not disclose what the verdict on this point was, and the counsel for the tenants, in their able argument, do not present any grounds of exception to the ruling of the Judge, bearing on this matter. Those rulings appear to us as favorable to the tenants as they had a right to require.
. We see no reason to set aside the verdict on the motion. The case is peculiarly one of law. There is very little conflict of testimony or dispute.as to facts.
Exceptions and motion overruled.
Appleton, C. J., Davis, Dickerson and Barrows, JJ., concurred. Walton, J., having been of counsel in the former suit, did not sit in this.