¶1The opinion of the court was delivered by
¶2On the 12th January, 1813, when the plaintiffs attached a moiety of the farm as S. C., junior’s, property, (S'. C-, jun., was seized of a moiety in fee, and- had a freehold in the other moiety. As only a moiety was attached, the other moiety passed to the defendant by the deed of February 16, 1813 ; and as respects the plaintiffs, the defendants must be considered at the time of the extent as tenants in cammon with Simeon Chase, jun. But an execution against one holding lands as a tenant in common cannot be extended on apart of the land so holder!, by metes and bounds. 9 Mass. Rep. 34, Porter vs. Hill. — 12 Mass. Rep. 348, Bartlett vs. Harlow.
¶3But it is said Simeon Chase, jun.. and those claiming under him, are estopped to make this objection, and 12 Mass. Rep. 474, Varnum vs. Fox, is cited. We are not disposed to call in question the correctness of that decision, but we apprehend it cannot apply to the present case. Because this objection did not exist when the defendant bought of Simeon Chase, jun., and because the objection is not now, that the extent was made to the prejudice of Simeon Chase, jun., but to the prejudice of the defendants themselves. Had the extent been made previous to the conveyance by Simeon Chase, jun., to the defendants, the defendants would have been .estopped. The verdict must be set aside and the plaintiffs called. Plaintiffs nonsuit.