The court cannot perceive any distinction, which will avail the defendant, between this case and that of Perry v. Perry, 2 Gray, 326. If there is any distinction between the two cases, the present case is the strongest for the plaintiff For, as was decided in Foster v. Durant, 2 Gray, 538, the proceedings under the original execution were utterly void. There was, in law, no levy at all on the equity of redemption which the officer undertook to sell and convey to Foster. Whereas, in Perry v. Perry, the mode of levy was right, and the execution *31would have been actually satisfied, if the equity of redemption which was levied on and sold, had belonged to the execution debtor.
It is contended for the defendant, that the only adjudged point, in Perry v. Perry, was, that an action of contract on the judgment would not lie in such a case ; and that the question, whether scire facias could be maintained, is still open. But the court there decided, (after an argument, which was the same, in substance, as that which has now been presented to us,) that debt would not lie on the judgment, for the reason that no common law remedy, in the case, existed in this commonwealth, nor any statute remedy besides that given by the Rev. Sts. c. 73, which was the remedy by scire facias. And we see no reason for changing the opinion then formed and announced.
Alias execution awarded.