The opinion of the court was delivered by
Ross, J.The only exception is to the refusal of the court to charge as requested. The defendant claimed title to the premises by a levy and set-off on an execution in his favor against John Adams. John Adams derived his title, if any, to the lot, from the intestate, or by adverse possession against him. The plaintiff’s evidence tended to show, that the intestate and John Adams *564made a conditional exchange of lands, by which John Adams was to have the lot in question if he paid the difference in value between the lands exchanged, and that thereupon John Adams took possession of the lot in question, and occupied it over fifteen years, had it set to him in the grand list, and paid the taxes. Never having paid the difference agreed upon, he finally surrendered the lot to the intestate, and took possession of his own lot. No deeds had ever been executed of the premises so exchanged. If the plaintiff’s evidence was to be credited, John Adams’s occupancy and possession of the lot was under the title of the intestate, and in subordination to it, and not under any claim of title in himself as against the intestate. His right to title to the lot from the intestate, depended upon the performance of the condition attached to and made a part of the exchange, by the payment of the difference in value of the two premises. The defendant, under this state of the evidence, requested the court to charge the jury, that the occupancy by John Adams, of the lot for fifteen years, and having the same set to him in the grand list, gave Adams a good title, even though such occupancy was by the permission of the intestate, and that no understanding between Adams and the intestate would prevent the creditors of John Adams from holding the land. The request has no foundation in law. It is the adverse character of the possession and the claim of title by the occupant, that give one title against the legal owner by fifteen years’ possession. A person can never gain title to land by possession thereof, however long continued, if that possession is with the permission of and in subjection to the holder of the legal title to the premises. A creditor, by attachment and set-off on execution, can obtain no greater rights to land than the debtor has. Sometimes it happens that the debtor, by his own fraudulent acts, has placed himself in such a position that the court will not aid him to assert his rights, and yet will aid his creditors in asserting them. In such cases, the creditors can take only that right to the land which is in the debtor, and which the debtor could assert if it were not that in so doing, he must be heard to assert and prove his own fraud.
Judgment affirmed.