The opinion of the court was delivered by
Redfield, J.In regard to the statute of limitations, this case arose under the act of 1797, but not being barred before the passage of the act of 1832, is, in terms, controlled by that statute,, after it took effect. The terms of the statute are, “ against whom there “ is or may be any cause of actionthus, ex vi termini, including all subsisting causes of action, at the time the act took effect.
The construction of this statute seems pretty well settled by the decisions had under it, so far as this case is concerned. The property, which it is necessary for the debtor to have, so as to preclude the plaintiff from deducting the absence of the defendant from the State, in 'computing the term of the statute bar, must be property sufficient to satisfy such a portion of plaintiff’s debt, as fairly to justify the institution of legal proceedings, for the collection of the debt. The creditor is not bound to sue merely to keep his debt alive, as he would be if the debtor were within the State, inasmuch as the judgment which he could obtain, could only bind the property attached, or within the jurisdiction, unless the debtor volunteered to appear in the suit. Williams, C. J., in Hill v. Bellows, 15 Vt. 733, declares, that the property must be sufficient to satisfy the whole debt. And it seems to me such is the reasonable import of this portion of the statute of 1832. “ Shall not have “ known property, within this State, which could, by the common “ and ordinary process of law, be attached,” seems to imply, that it shall be such property, in such position, and to such extent, as to enable the party to take it, to some beneficial purpose, i. e., to satisfy his debt; for beyond that, or without that, it would afford no excuse for the absence of the debtor himself. That the party could have secured property enough to enable' him to obtain a judgment at his own cost, which he could not satisfy in this jurisdiction, for want of any thing to levy upon, and which would be of *626no avail in any other jurisdiction, is certainly no excuse for the absence of the debtor, and no sufficient reason why the statute of limitations should be suspended.
The case of Wheeler v. Brewer, 20 Vt. 113, seems to decide sufficiently, that the defendant’s ownership of the property must be so notorious, as to enable the creditor, by the use of common diligence, to find and attach it. It must, too, no doubt, be estate, unembarrassed, and which is liable to be levied upon for the satisfaction of the debt. It is, therefore, questionable how far the creditor would be bound to regard a merely equitable title, or an incumbered title, to real or personal estate, in his debtor.
And it would seem, that this estate should so continue during the whole period of the debtor’s absence from the State, in order to continue the operation of the statute. For the statute seems, in terms, to provide that absence from the State, (not having known property, which might be attached,) shall be deducted from the term of limitation fixed, of course, when this property ceases, or ceases to prove the essential requisites implied in the statute, the absence must be deducted. This very point, with reference to a similar statute, came under consideration in the case of Dow v. Sayward, 14 N. H. 271, and it was there considered, that the property must continue, or the statute of limitations would cease to run. And there seems to us to be this distinction between the act of 1797 and 1832, that in the former, if the statute began to run, it continued to run, while under the latter, it seems to have been the purpose of the statute, to arrest the operation of the statute whenever the debtor was absent from the State, not hav- ^ ing known property, &c. In short, the debtor must either remain in the State, or leave sufficient known property here, out of which-his debt could be satisfied, or else the statute would not produce a bar. This is certainly far more just and reasonable than the earlier statute upon the subject. But it is perhaps not needful absolutely to determine this point here. And whether the pleadings are in form, to raise all these questions properly, it is not needful here to inquire. It would seem, that the case will have to go back, upon the admission of the probate proceedings, not having been recorded in the town clerk’s office. The statute is express in requiring such record, and this court in Harrington v. Gage, 6 Vt. 536, held such record indispensable to a recovery, in ejectment. And we *627do not well perceive how any distinction can fairly be made, between the effect of such proceedings before recorded in the town clerk’s office, in an action of ejectment, and other actions, where the title of land comes in question. The statute requires the record in the town clerk’s office, as much as in the probate office. How far the defect may be now supplied, it is not needful to inquire. Whether the proof being perfected, the title, and its notoriety will not also be able to be made out, will hereafter depend, to some extent, probably, upon a different state of evidence.
Having made these suggestions, to enable the parties to present the case in the proper form, should it be further litigated, we scarcely deem it expedient to go very much into the' questions of title raised at the former trial.
The title to the land would seem to have been sufficiently in the debtor, and this sufficiently known to the creditor, before the attempted conveyance to Crane. This conveyance seems to be admitted, on all hands, to have been altogether defective, as a legal conveyance. How far it created such an equity in Crane, as to bring it without the terms of the statute, may properly admit of some question. There are so many other grounds upon which it seems desirable to have a reconsideration of the case, that we have not spent much time upon this.
Judgment reversed and case remanded.