This case has been heretofore under the consideration of the court (11 Met. 371), when it was held, that it was competent for the demandant, by plea and proof, to avoid the judgment obtained by the tenants against George G. Denison and one M’Ginney, to recover possession of the premises demanded in this action; there being no such privity of estate between the present demandant and Denison and M’Ginney, as would authorize the demandant to maintain a writ of error upon that judgment.
Upon the last trial, the demandant insisted in avoidance of that judgment, that there had been no proper service of the writ, and that the default of the tenant in that action, and the judgment entered therein, were unauthorized by law. The proceedings were said to be void, because Denison was out of the state at the time of the service of the writ, being then resident at West Hartford in the state of Connecticut, and because judgment was rendered by default at the first term, without further notice ordered by the court; the only service being an attachment of a chip, the property of the defendant, and a summons left at the usual place of abode of M’Ginney for said Denison and M’Ginney, the latter being described in the return as “the agent or tenant of said Denison.”
The demandant relies upon the provisions of the Rev. Sts. c. 90, <§.<§> 47 and 48, and c. 92, § 3. The section first named, <§> 47 of c. 90, requires, that “ In all real actions, if the defendant or tenant in the action is out of the state, and if there is no place of his last and usual abode here, known to the demandant, the summons, or an attested copy of it, shall, in addition to any other service required, be left for him with the tenant or occupant of the demanded premises, if there be *36any, and if not, it shall be left in some conspicuous place on the premises.” By § 48, “ In all cases, where the defendant is out of the state at the time of the service of the summons, he shall, in addition to the service thereof, as herein prescribed, be entitled to further notice of the suit as provided in the ninety-second chapter.” By c. 92, § 3, “ If the defendant is not an inhabitant or resident within the state, &c., the court, upon suggestion thereof being made, and upon the facts appearing by the officer’s return on the writ, shall order the action to be continued from term to term, until notice of the suit shall be given in such manner as the court may order.”
We are all of opinion, that, upon a proper construction of these statute provisions, notice of the suit should have been ordered, and the case continued from term to term, until such notice had been given; and that the service in the mode stated in § 47 of c. 90, is not sufficient; the tenant being out of the commonwealth. It follows, therefore, that the judgment rendered in favor of the present tenant against Denison and M’Ginney was not properly rendered, and, when offered by the tenant as a bar to the present action, may be avoided by the demandant for that cause. That judgment being avoided, the merits of the titles of the respective parties to the present suit are fully open to inquiry.
The demandant claims under a conveyance from Chestei Denison to George G. Denison, dated April 24th, 1841, and recorded April 29th, 1841; and a deed from George G. Denison to the demandant, dated March 27th, 1844, and recorded July 29th, 1845. The tenants claim under an attachment of the premises, in an action in their favor against Chester Denison, made on the 27th of August, 1841, and a levy thereon, November 23d, 1844, on the ground, that the conveyance by Chester Denison to George G. Denison was without consideration and in fraud of the grantor’s creditors, ánd therefore void as respects them.
The demandant, by way of avoidance of the title of the tenants, alleges that this levy is ineffectual to pass any title, in the first place, because the return of the officer does not *37show a sufficient cause for the appointment by him of two appraisers thereon; as the only reason assigned therefor in the return is, “ the .debtor not being a resident within the commonwealth.”
The authority conferred upon the officer to appoint an appraiser is a limited one, and only to be exercised "in the cases specified in the statute. The Rev. Sts. c. 73, <§> 3, provide, that, “ in case the debtor shall neglect to appoint one, the officer shall appoint one for him,’ and § 23 requires the officer to set forth, in his return, “ that the appraisers were appointed by himself, and the creditor and debtor, or that the debtor neglected to appoint one, and the officer appointed one for him, as the case may be.” This the officer has not done in the present case. The words of the certificate, “ that the debtor not being resident within the commonwealth,” are insufficient. The debtor, though not a resident within the state, properly so considered, but transiently here, might be in readiness to appoint an appraiser personally, or, though absent and a non-resident, he might have named a person as appraiser, and informed the officer of such selection; or he might act through some authorized agent or attorney, in selecting an appraiser; in all which cases, the officer would not have been authorized to appoint an appraiser for the debtor, upon the ground of his neglect so to do. The statute has made it a condition precedent to the appointment of an appraiser by the officer, in behalf of the debtor, “ that the debtor neglected to appoint one; ” and this fact should appear and is required in the return by Rev. Sts. c. 73, <§> 23. This is essential to the validity of the levy. This form of stating the fact is very simple; and either this or something equivalent must appear from the return. There is not enough stated in this return to show the appraisers to have been legally appointed; and, for this cause, we are all of opinion that the levy is invalid.
This renders it unnecessary, for the decision of the present case, to- express an opinion upon the further objection taken to this levy, namely, that it does not sufficiently appear, on *38this return or any certificate accompanying the levy, that the appraisers were duly sworn. But the point having arisen in the case, and having been fully argued, I will state the opinion of a majority of the court as to that objection.
The return of the officer states generally the fact, that “ the appraisers were first sworn according to law,” using substantially the language of the Rev. Sts. c. 73, § 23. This general form of return would have been insufficient before the passing of the revised statutes. Chamberlain v. Doty, 18 Pick. 495. But we think that <§> 23 of c. 73 of the Rev. Sts. fully warrants the more general form of return adopted by the officer in the present case. It is not to be understood, that we came to this result, under any assumption, that all that is required to be stated in the return of the officer is to he found specified in this section. This clearly is not so ; as the names of the appraisers should be stated, as well as that they were “ discreet and disinterested persons,” and all other facts necessary to show a good levy. But as to the return of the administration of the oath to the appraisers, that having been particularly provided for by <§> 23, we think the certificate and return thereof, in the general manner prescribed in that section, is sufficient. We are not certain that any change of the law in this respect was intended by the commissioners for the revision of the statutes, by this section; but the section itself well authorizes this form of a return; and, as it seems to secure fully the rights of the parties, we are of opinion, that this levy would not have been invalid by any deficiency in the return in that respect.
It was further insisted by the tenants, that the demandant was not entitled to avoid the levy for any defect therein, if the conveyance under which the demandant acquired his title was a voluntary conveyance, and one that might be avoided as fraudulent as respects the creditors of the grantor. This position, we all think, is untenable. The grantor of the demandant might himself avoid the levy for any legal defect in the return. As respects his title, the levy is nugatory: not being in accordance with the statute. The title thus remain*39ing in the debtor, unaffected by the levy, he may transmit the estate to a third person ; and as between the grantee and himself, the conveyance is operative without any consideration. It is sufficient to pass the title as against the grantor and his heirs. If any creditor of the grantor would avoid the deed, as made without consideration, and therefore fraudulent as respects creditors, he must do so by an extent upon the land by a levy duly made, which would avoid such voluntary deed of the debtor ; but until such valid levy is made, the title of the grantee under a voluntary conveyance will prevail.
The result, therefore, is, that the tenants’ title to the demanded premises is invalid, and the demandant is entitled to judgment.
Tenants defaulted.