This case is somewhat complicated ; but an analysis of it shows that the questions for decision are not numerous or difficult of solution.
The action was originally brought against Susannah Williams; and upon her decease two of her heirs, Almond and Avira Williams, appeared and assumed the defence. The demandant claims under a levy upon the land as the property c 1 *130Avira Williams. The tenants’ title is a deed from Avira, prior to the levy, which deed the demandant contends was fraudulent and void as against creditors, and which has been found to be bo by the verdict of the jury. The tenants also claim title as the assignees of a mortgage, and deny the validity of the demandant’s levy.
1. The objection to the validity of the levy appears to have no foundation. It has been already decided that the officer was justified in suspending further proceedings under it, after he had taken the land upon the execution, by reason of a prior attachment. Wadsworth v. Williams, 97 Mass. 339. The appraisers were appointed and sworn in January 1862. The debtor neglecting to appoint an appraiser, the officer appointed one for him. The appraisers viewed the land taken on the execution, and then further proceedings were suspended till April 1863, when, within thirty days after the prior attachment was disposed of, the levy was completed. These proceedings were regular and legal. The tenants argue that, because the notice to choose an appraiser stated that the officer would cause the land to be appraised and set off on the 22d of January 1862, and the levy was on that day suspended, a new notice should have been given to choose an appraiser at the time the levy was completed in 1863. But there is no such requirement of the statute, and we can see no reason for it. The debtor had the opportunity to appoint, and neglected to do so. The appraisers were lawfully appointed, and their authority continued until they had completed their work. The levy was suspended after the land was taken, and before the appraisal, which is what the statute contemplates. There was no greater delay than was made necessary by the existence of 'the prior attachment.
2. The testimony of the declarations of Almond and Avira Williams was admissible, not as the declarations of alleged fraudulent grantors after they had parted with their title, which would be incompetent, but because they were parties to the action on trial.
3. The instructions asked by the tenants were properly refused. A conveyance made with an actual purpose and intent *131to defraud creditors, present or future, is not valid against them in favor of a grantee who participates in the fraudulent intention, although made for a full consideration, and by a grantor in the possession of any amount of property. The instructions given by the court were undoubtedly correct as far as they went; and no error in them is suggested by the tenants. If further instructions were desired, they should have been asked.
4. The remaining exception is to the ruling of the court that the quitclaim deed from Abel Loring to Susannah Williams, dated December 8,1859, operated as a discharge, and not as an assignment to her of the mortgages which Loring then held. Whether the release of a mortgage will constitute a discharge or an assignment depends not so much upon the form of the instrument as upon the relations of the parties to the estate, and their presumed intent derived from the circumstances under which the conveyance is made. If the release is to a party whose duty it is to extinguish the mortgage for the benefit of another, it will be held to operate as a discharge. Gibson v. Crehore, 3 Pick. 475. Brown v. Lapham, 3 Cush. 552.
Susannah Williams, who was the owner of the premises in controversy on the 3d of September 1838, mortgaged them on that day to Woods and Field, to secure the payment of a sum of money, and also to secure the payment of a previous mortgage to Holland. By her deed of March 1839 to Avira Williams, she covenanted against all persons claiming by, through or under her. By force of this covenant, so long as the estate remained in Avira, she was bound to extinguish the Woods and Field mortgage, which she had herself made; and to do this must necessarily extinguish also the Holland mortgage. As be tween her and Avira, therefore, any payment of these mortgages must operate as a discharge, and a transfer of the mortgage title to her would have the effect of a release, and not of an assignment. The tenants contend that she would be under no such obligation to the creditors of Avira; but this claim is based upon a misapprehension of the true relation of the parties. The demandant has levied upon the land as the property of Avira, treating the conveyance by him to Susannah as fraudulent and *132void. The fraud being established by the verdict, that convey* anee is to be regarded as a nullity, so far as the demandant is concerned. He takes the title of Avira as if no such conveyance had been made, and succeeds to all his rights. It follows, obviously, that the demandant will take the benefit of the covenant in the deed from Susannah to Avira, as much as any other part of Avira’s title; and that her payment of the mortgages according to her covenant inures to the demandant’s use as a discharge of them. Exceptions overruled.