It seems to us, that the decision of this case depends upon a few well settled rales of law. The action is trespass quare clausum; the plaintiff relies upon a title to the premises as his own, and the right of possession incident thereto. The defendant holds under Elias Harris, and if Harris has the better title, the action cannot be maintained.
The plaintiff, by a deed of quitclaim, conveyed his life estate in this close to Elias Harris, to hold for the term of the joint lives of the grantor and his wife, who is still living, upon certain trusts. This was a good and valid conveyance, as between the grantor and grantee, and vested the freehold in-Harris, whether fraudulent or not as against creditors. If fraudulent, it was voidable and not void, and the estate passed to the grantee, whether defeasible by creditors or not. The fact that it was upon trust is immaterial. This conveyance was given, with a special and qualified warranty, in the usual form common in Massachusetts, “ so that neither I, the said Isaac, nor my heirs, or any other person or persons, claiming from or under me, or them, or in the name, right, or stead of me or them, shall or will, by any way or means, have, ciaim, or demand, any right or title to the aforesaid premises, or their appurtenances, or to any part or parcel thereof, forever.” This clause constitutes a covenant of warranty, to the extent of its import. It differs from a general warranty in this, that one is a warranty against any and all paramount titles; the other against the grantor himself, and all persons claiming under him. Newcomb v. Presbrey, 8 Met. 406. In the pre*33sent case, the plaintiff is claiming the very same title, which he then conveyed with warranty, an estate for his own life then subsisting ; and in this respect, it is quite distinguishable from the case where the grantor subsequently purchased in another estate. Comstock v. Smith, 13 Pick. 116.
Such restricted warranty, to the extent of its operation, must work by way of estoppel, as well as by way of contract. If at the time of such conveyance and warranty, the estate conveyed was liable to be taken by the grantor’s creditors, to satisfy his debts, this liability was an incumbrance, by reason of a subsisting right of creditors to take and hold the estate under him, and was at that time therefore a paramount subsisting claim, within the qualified warranty, and the taking of the estate by creditors would be a breach of that warranty. Blanchard v. Brooks, 12 Pick. 47.
The plaintiff having gone into insolvency voluntarily, an assignee was chosen, and an assignment made in usual form; and under the authority and power thus given, the assignee undertook to sell and convey the close in question, and it was sold at auction, and purchased by the plaintiff. A question is made by the defendant, whether the assignee could sell estate, which had thus been sold by the debtor, by a conveyance fraudulent against creditors, until he had himself brought an action and defeated the grantee’s title. Perhaps this is not material in this case for the reason after stated; but it seems to us, that it would be too restricted a view of the statute, to hold that an assignee takes only a right of action in land so conveyed. It is true, that the only mode in which a creditor, by the ordinary process of law, can avail himself of the real estate of his debtor, in satisfaction of his debt, is by attachment and seizure on execution ; in other words, by action. But the insolvent law, St. 1838, c. 163, § 5, provides, that the assignment shall vest in the assignees all the property of the debtor real and personal, not only such as the debtor himself could convey, but such as could have been taken on execution. This includes all lands previously conveyed by deeds fraudulent against creditors, and voidable by being taken in execution. If it vested in the assignee, — if the right of property was in him, — he could transfer and coiiv sy it.
*34But, as already suggested, it was immaterial whether or not the original conveyance by Gibbs to Harris was fraudulent against creditors; or, if it was so, whether the land de facto vested in the assignee, so that he had a right to convey it. If it was not, then the property did not pass to the assignee and his sale was void, and the plaintiff took no title under it.. If it was fraudulent, it was by reason of acts done or suffered by Mm, which had given rights to creditors to reclaim the land and hold it against and under him, and was an incumbrance, against which he warranted.
If the assignee took any interest in this life estate of the debtor, for the benefit of creditors, on the ground, that the conveyance was fraudulent, then the purchase of that interest by the plaintiff was nothing more than the extinguishment of an incumbrance, against which he had covenanted, and which he was bound to extinguish at his own expense, and by the doctrine of estoppel, this purchase of the outstanding right of creditors enured to the benefit of his grantee, with warranty, and made good the title of Harris.
The court are therefore of opinion, that by the principles of law, the plaintiff cannot set up a title, thus derived through the assignee from his creditors, to defeat his own conveyance, in plain violation of his covenant of warranty, and therefore that this action cannot be maintained.