Whether the plaintiff, on the facts in this case, had a cause of action, at the date and service of his writ, is the question to be determined.
Payment upon the execution is a fundamental fact, without which contribution cannot be demanded; and this indispensable cause of action could alone exist,by a legal transfer of the plaintiff’s land, before the commencement of his suit.
The transfer of title, by the levy of an execution, is by virtue of the statute; and to render it effectual, the requisitions of the law must be strictly observed. The statute requires, in order to the acquisition of title, not only a levy, *539appraisement and setting off of the land levied on, but a recording by the town-clerk of the execution, with the officer’s return upon it, and a return of the execution duly indorsed, into the office of the clerk whence it issued. Not one of these requisitions can be dispensed with. It is by their united operation, that the levy is complete, and effects a legal transfer of title; and without the observance of the last act required, nothing is effectually done. Hence, it is unquestionable, that when the plaintiff commenced his action, the execution and return not having been recorded in the office of the town clerk, nor the execution returned to the clerk of the court, the plaintiffs land was not transferred to the execution creditors, but remained his own.
To overcome this difficulty, reliance is had on the doctrine of relation. It has been said, that when the execution, after the observance of the prior requisitions, is returned to the office of the clerk, this last act has relation to the levy, and that the title of the execution creditors is considered as vested in them from that time. That this, as a general proposition, is true, cannot be doubted; but it is not true universally. The doctrine alluded to is very ancient, and although it involves a fiction, was established for the wisest purposes; otherwise the death of the execution creditor, after the levy and before the return of the execution to the clerk, the sheriff’s going out of office, and other events, that ought to have no operation,—would entirely frustrate the levy. Hence, as was correctly said, in Heath & al. v. Ross, 12 Johns. Rep. 140. “As between the parties to the grant, when the title is consummated, by all the necessary forms, it will relate back to the date; but this relation, which is a fiction of law, is never to be adopted, when third persons, who are not parties or privies, will be prejudiced thereby.” This principle is equally applicable to the levy of an execution. The point has so often been decided, as to become a legal maxim: In fictione juris, semper existit œquitas. In Cooper & al. v. Chitty & al. 1 Burr. 20. it was determined, by Lord Mansfield and his associates, that the sheriffs of London should not be made wrongdoers, by a fictitious relation; and in Johnson & al. v. Smith, 2 Burr. 945. it was said, by the same court, that they would not endure, that a mere fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the thing.
*540At the commencement of the plaintiff’s suit, the execution creditors had acquired no title to the land levied on; the plaintiff was still the owner of it; and consequently, he had paid nothing on the execution, and had no cause of action against the defendant. The court would be ill employed in reversing the entire order of things, and, in opposition to the most subtantial justice, to convert a fiction into a fact, and thus give to the plaintiff, and subject the defendant to, a legal right of action, which confessedly did not exist, until several days after the commencement of the plaintiff’s suit.
The question under discussion was explicitly decided, by this Court, in Burton & al. v. Pond, 5 Day 160.—a determition, that escaped the research of the counsel in the case.
Ejectment was brought for a certain tract of land in Milford; and the plaintiff claimed title, by virtue of the levy of an execution. The land was duly levied on, and regular proceedings were, had, with the exception only, that the execution although seasonably returned, was not recorded at full length, until after the plaintiff had commenced his suit. The opinion of the court was delivered by the late Judge Smith. “The levying of executions on lands,” said he, “in payment of debts, is authorized solely by statute: there being no common law on the subject. The statute is, therefore, our only guide; from which we find, that the recording of an execution in the office of the clerk of the court, whence it issued, is an essential requisite to the completion of a title; as much so, as any other fact relating to the levy or return of it. And the fact as to the time when the execution was actually recorded, may be proved, by parol testimony. There is no room for the application of the doctrine of relation in this case. The action was commenced without any title to the land in question; there was then no ouster nor adverse holding, no wrong; and the plaintiff had no rights. All this cannot be supplied, by the doctrine of relation.”
It follows, very clearly, that the evidence offered by the plaintiff, does not support the issue on his part; and therefore, judgment is advised for the defendant.
The other Judges were of the same opinion, except Williams, J., who gave no opinion, having been of counsel in the cause.Judgment to be given for defendant.