PROCTER US. NEWHALL.

actually vested in innocent parties, under the law as it was before the repeal. The cases, which will then be within its operation, will be only such as arose after the passage of the law, which will not include the tenant's case.

We contend, however, that the whole proceedings respecting the partition in this case were void, as beyond the jurisdiction of the Court of Probate. It was settled in the case of Pond & Al. vs. Pond & Al. (4), that where one among several heirs or devisees had conveyed his purparty, the Court of Probate was ousted of its jurisdiction relative to the partition of the estate. The conveyance in the case referred to was from one to another of the heirs; and by the late statute the jurisdiction of the judge of probate is extended to such a case, but not to the case of a conveyance to a stranger; for the division and assignment is still confined to heirs or devisees, notwithstanding this new provision. And a conveyance from one of them to a stranger will still as effectually oust his jurisdiction, as any conveyance would have done before this statute. An attachment and the levy of an execution upon land passes the title from the debtor, and vests it in the creditor, and, when completed, is a conveyance within the meaning of the law, and is equivalent to a transfer by deed.

On this point of the want of jurisdiction in the judge of probate, it may be further observed, that considering the tenant's attachment as a statutory conveyance from one of the heirs to him as a stranger, it necessarily follows, either that the judge of probate had no jurisdiction in the case, or that he is authorized to make partition between heirs at law and strangers who have [* 89 ] purchased in. If the former be true, the partition is void,

as above stated, for want of jurisdiction in the Court that made it; if the latter be the correct construction, then the partition is void for want of observing the requisitions of the statute. For if the tenant was a purchaser, the partition should have been made between him and the heirs at law, and not between J. H. and the other heirs. His interest and title being, for this purpose, inceptively in the tenant, he should have been notified, and the money awarded should have been paid or secured to him. But this was not done. The tenant had no notice of the partition, as is required by the statute; although the judge of probate, and the heirs at law, certainly knew that he was interested in the estate; notice in writing of the attachment having been filed in the Probate Court, before the warrant to make the partition issued. Whichever alternative, therefore, be adopted, the case is equally with the tenant.

(4) 13 Mass. Rep. 413

PROCTER US. NEWHALL.

Pickering, in reply. The attaching creditor cannot be in better condition than his debtor. But the debt, which Joseph H. owed to the intestate, must necessarily have come into the settlement of the estate in the Probate Court, and there set off against his distributive share of the real and personal estate.

The estate of an heir to an intestate vests, it is true, upon the death; but it is defeasible in various ways; as in case of the insolvency of the intestate, or where the purparty of the heir after a division is taken by a creditor of the intestate, or where the whole of the real estate is assigned by the judge to one or more of the heirs.

The provision of the new statute, respecting shares conveyed, was intended to preserve the jurisdiction of the judge in every case, where a part of the estate only was conveyed, whether such conveyance was to a co-heir or to a stranger. Suppose an heir to have conveyed his undivided share, and it afterwards appears that the

estate is indivisible, shall the judge be prevented from [* 90] assigning the whole to one under the statute?

Notice

of the proceedings to the tenant would have been fruit less; the judge of probate could not adjudicate upon his claim. The cause was postponed for advisement, and, at an adjourned session of this term, the opinion of the Court was delivered by

WILDE, J. This cause has been argued on both sides with great ability. Nothing, I believe, has escaped the attention of the counsel, which could influence, in any degree, the decision of the cause. In delivering the opinion of the Court, I shall advert only to the principal arguments that have been urged, which will suffice to show the grounds of our determination.

It is admitted that one Susanna Hathorne died intestate and seised in fee of several parcels of real estate, of which the demanded premises are a part, leaving the demandant, with one Joseph Hathorne and sundry other persons, her heirs at law. The demandant claims the land in question in severalty, by virtue of a decree of the judge of probate, assigning the same to her, as one of the heirs of the said Susanna, in the division of the estate. Her title, therefore, depends on the validity of this division and assignment.

The first objection made to it, by the counsel for the tenant, is, that the judge of probate had no jurisdiction of the case, it being admitted that, previously to the division, an attachment was laid by the tenant on the share of the said Joseph Hathorne, and that execution has been duly extended thereon, within thirty days after judgment; so that his title has relation back to the time of the attachment, which was prior to any proceedings in the Probate

PROCTER vs. NEWHALL.

Court in relation to the estate. The case of Pond & Al. vs. Pond & Al. has been relied upon in support of this objection. This case would certainly be in point, but for the statute of 1817, c. 190, by which it is provided "that no conveyance, made by any heir or devisee, of his or her interest or estate in the lands of any testator or intestate, *shall take from the judge of probate [* 91] his jurisdiction and authority to divide and assign the real estate of any testator or intestate, among his or her heirs or devi sees." When an execution is levied on the real estate of the debtor, all his title and interest in the estate is transferred to the creditor, who thereby becomes the purchaser of the estate. 3 Mass. Rep. 219. We consider such a levy, therefore, as equivalent, in legal contemplation, to a conveyance by deed; and this, by the express provision of the statute, is not to take from the judge of probate his jurisdiction.

The next objection, we think, is better founded. It is this, that the tenant is not bound, nor can his estate be affected, by the decree of the judge of probate, he never having been notified of the proceedings in the Probate Court. It is a familiar principle of the common law, that judgments do not bind the rights of any but parties and privies. By a writ of partition none are bound, but the parties named. In such process, therefore, all the co-tenants must be made parties. In this state, a more convenient remedy is provided by petition, in which the petitioner may declare that he is seised in common with persons unknown; and if, after public notice given, no one appears to object to the partition, the petitioner's share may be set off to him, to hold in severalty. And such partition will bind all the co-tenants, because all are consid ered as having notice. But, unless general notice, according to the statute, be given, all the co-tenants must be made parties, or be notified, or the partition will be void. 2 Mass. Rep. 471.-3 Johns. 459. This rule applies with still greater force to a partition or division made by a judge of probate, because no writ of error lies to the Probate Court; and a party having no notice, cannot be supposed to have an opportunity to appeal. In the case of Smith vs. Rice, 11 Mass. Rep. 507, it was accordingly determined that partition, made by order of the judge of probate, was void as to a person not notified. The reasons given for * the [ judgment in that case are perfectly convincing, and are decisive as to the question under consideration.

92 ]

The remaining questions relate to the title of the tenant; as to which two objections have been made. 1st. That the statute of 1817, before referred to, has repealed the law of attachments, so far as it relates to a case like the present. And, 2d. That the 7 73

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attachment and levy, if valid, could only transfer to the creditor the same estate which the debtor had; and that this was a defeasible estate, subject to the debt due from him to the intestate. If either of these objections be well founded, the tenant's title must fail, and no objection will remain to the proceedings in the Probate Court.

As to the first of these objections, it is sufficient to remark that we can perceive no repugnance in the two statutes. The law does not favor repeals by implication; they are not to be allowed, unless the repugnancy be quite plain. Bac. Abr. Statute D.

It cannot be supposed that the provision, for the division of estates among heirs or devisees, was intended to restrain their right of alienation; for it refers to such right, as an existing one. If then an heir may convey his share in the estate by deed, of which I think there can be no doubt, no reason can be given why it should not be liable to be taken on execution. There can be no more difficulty in any such case, in making partition in the Probate Court, than there would be in other courts; unless the validity of the conveyance or the levy should be questioned. In that case it is true, as suggested in the case of Pond & Al. vs. Pond & Al., questions might arise, which would seem not altogether proper for the consideration of a Probate Court. The legislature, however, have not thought this a sufficient objection to the giving of jurisdiction to the judge of probate in such cases; and it cannot affect the construction of the statute, as to the point in question.

[* 93]

*The other objection would be fatal to the title of the tenant, if it were true that Joseph Hathorne had but a defeasible estate, as has been suggested. For the tenant has no greater or better estate than Joseph Hathorne had, at the time of the attachment. But we are of opinion that his estate was no more subject to the debt formerly due to the intestate, than it was to any other debt. In the division of real estate among heirs, no deduction can be made from the share of any one of them, on account of any debt due from him to the estate. This can only be done in cases of advancement. It cannot be done even in the distribution of the personal estate; there is no law authorizing a judge of probate so to do. The course is, to make an equal distribution; and the administrator, if he would avail himself of the right of set off, may refuse to pay this distributive share; but this right of set off does not constitute a lien on the estate.

For these reasons, we think the tenant's title under the levy is good, and that the demandant must be called. Demandant nonsuit

CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

FOR THE

COUNTIES OF SUFFOLK AND NANTUCKET, MARCH TERM, 1821, AT BOSTON.

THE PRESIDENT, DIRECTORS, AND COMPANY OF THE HARTFORD BANK versus SAMUEL BARRY.

The cashier of a banking company may, ex officio, endorse a promissory note the property of the company, and authorize a demand on the maker and notice to the endorsers.

Where an endorsed promissory note was made and discounted for the benefit of the maker at usurious interest, and thus first put into circulation, the maker was held an incompetent witness to prove the usury.

ASSUMPSIT against the defendant, as endorser of a promissory note, made by one Benjamin Eaton, jun., payable to the defendant in four months from the date and grace, dated May 20th, 1819.

At the trial before the chief justice, at the last November term in this county, the plaintiffs, to prove notice, produced evidence that at the request of Samuel Frothingham, cashier of the branch of the United States bank in Boston, a demand was made on the maker