The demandant, having recovered a judgment against Ezekiel W. Chamberlain, levied his execution upon land which he alleged to have been purchased and paid for by the judgment debtor, and conveyed to his wife, Harriet L. *260Chamberlain, with intent to delay, defeat or defraud his creditors and brings this suit, which is a writ of entry, to recover the land set off by the levy. A number of exceptions were taken to the rulings at the trial; but one of which appears to have been well founded.
1. The levy was made under the provisions of Gen. Sts. c. 103, § 1; and the tenants make the objection that the section does not apply to the case, because the land levied on was not the land of the judgment debtor, and he had no title to it, legal or equitable. The section includes the same substantial provision, though less clearly expressed, which was first enacted in St. 1844, c. 107; and by its own terms declares and creates the interest which it empowers the creditor to take. To hold that it only applied to lands to which the debtor had a title would render it senseless and absurd. Foster v. Durant, 2 Gray, 538. Livermore v. Boutelle, 11 Gray, 217. Mill River Loan Fund Association v. Claflin, 9 Allen, 101.
2. The next objection is that the demandant acquired no right of entry by his levy, and therefore cannot maintain a writ of entry. The provision that his levy shall be void unless an action shall be brought to recover possession within one year after the return of the execution, Gen. Sts. c. 103, § 48, would of itself imply a right of action; and a writ of entry is the proper form of action. But the tenants’ counsel are mistaken in saying that this section makes the levy void “ until ” he commences his suit to recover possession; the word used in that statute is “unless,” and § 16 provides that the officer serving the execution shall give to the creditor a momentary seisin, which shall enable him to maintain an action.
3. The proceedings in making the levy were all in conformity with the statute, which does not require any statement in the officer’s return other than those which were made. The inconveniences suggested in regard to the exercise of the right of redemption are for the most part only those which exist in al cases of levy on lands fraudulently conveyed by the debtor.
4. Where the purpose of the grantor is shown to have been actually fraudulent as to creditors, it is sufficient to prove that the *261grantee takes without consideration, without proving otherwise his participation in the fraudulent intent. Marden v. Babcock, 2 Met. 99,104. The same rule is applicable to the fraudulent procurement of a conveyance to a third person under the statute. The general instructions as to the facts necessary to show a fraudulent transfer to the wife were also correct
5. The instructions asked in regard to Wilbur’s testimony were not requisite, and his evidence was properly submitted to the jury. Nor was the burden of proof on the demandant to show even “ approximately ” the amount of Chamberlain’s debts, if the proof established that he was so much indebted as to make the conveyance which he procured fraudulent.
6. The last exception which remains to be considered is more substantial. The witness Dean testified that he was a lawyer, and had a demand against Chamberlain left with him for collection ; that he made diligent inquiry to learn whether Chamberlain had any property, in order to collect this demand, but could find none. This testimony was admitted under objection, but we think it was competent. The fact that he had a demand for collection was immaterial, except as inducement to show the reason and nature of his inquiry. But that he made inquiry and could find no property was evidence for the jury on the question whether Chamberlain had any property which a creditor could discover. The tenants then asked the court to rule that the evidence of Dean was not competent for the jury to consider as showing additional indebtedness; but the court declined to give any instructions upon the point further than to say that it was a question of fact for the jury. We can have no doubt that this refusal was inadvertent; that the instruction asked should have been given; and that the tenants may have been seriously prejudiced by its omission. That a demand has been left with a lawyer for collection is obviously not evidence of a debt; and it should not have been left to the jury as a question of fact, but they should have been instructed to the contrary. For this reason the verdict must be set aside, and a new trial granted. Exceptions sustained.