¶1delivered the opinion of the court. The? plaintiff’s title, being by virtue of a levy of an execution in his favor against one Erastus Burt, the great questions' that arise' are, whether Erastus had any title that could pass by levy ? and whether this levy is sufficient to vest that title in the plaintiff ? The case allowed shows the title to the premises once in Jonat1ian:. Burt, the defendant, and also, that, whatever title Erastus Burl •, had at the time of the levy, he derived from said Jonathan,, by > virtue of the lease referred to in the case.
¶2Upon the trial at thé county court the counsel' for the.defend-', ant rested their defence principally upon the. writing signed by. said Jonathan arid Erastus in the margin of the record of said - lease. This was relied upon as a surrender by Erastus of the lease,and all his interest derived from it, to said Jonathan.We are'. now called to decide the legal effect of that writing. But the nature of the lease must be first understood.
¶3The lease is not a lease for years merely ; but conveys a pres-, ent fee, determinable upon the non-performance, by Erastus, of the conditions and duties named in the lease o,n his part to be per- -, formed. ' It has the formalities of a deed, signed, sealed, witness-.ed and recorded. It runs to him, his heirs, and assigns; and continues so long as wood grows and water runs. Those terms extend as fully beyond the use of land, as the term forever.
¶4But this title was to cease,and the land revest in Jonathan,u.\>-... on the failure odErasñis to perform the stipulations on his part.. ■ Now, what should be the effect, upon this lease,of the writing in, the margin of the record,signed by the parties to the lease ?
¶5It probably is not what was intended by the parties. It is not a- conveyance back of the. estate, for it has no seals nor acknowledgment. Nor can it be a discharge of the covenants of Erastus for it contains no consideration. None is pretended but rhutuál-*310fty, and that does not exist... Nothing pas--ses,or is discharged,, from Erastus. to ./on-tiiJian, to :stand as a consideration for the discharge of Jonathan’s■ claim on the covenants of Erastus. This writing, as it now appears, must be wholly inoperative. It can neither be a surrender nor discharge of the title of Erastus, nor discharge of his covenants. Had it been so executed as to reconvey the estate' to Jonathan, that would have formed a good consideration to support the'same instrument, as a disharge from Jonathan to1 Eras-tus of his covenants.
¶6' The. case shows that the defendants,.on trial, offered to proves failure of Erastus to perform the conditions of said lease,on his-part, before said writing in the margin was executed, and’also that ever since that, time, he has wholly abandoned’ the premises, and’, neglected every stipulation of the lease. This was rejected’ by the court, and probably ought to have been admitted; it certainly ought, if it had been offered in connexion with evidence to show that said Jonathan had re-entered upon the premises for a breach of condition- The nature of the lease being as above described,. Jonathan was not obliged ta re-enter ; but might stand’ aloof and' rely upon his remedy upon his covenants against Erastus. Or if he chose- to re-enter upon breach of the condition, he might do so, and thereby the estate would revest in him; and Erastus be no-longer liable for that support he had covenanted in the lease.. And the recovery of Jonathan upon his covenants in such case,, would only be for the damage he sustained before his re-entry. But it seems Jonathan was in possession before this suit wasbrought. Probably, that might have been urged' as a sufficient re-entry to revest the estate.
¶7Now, if such an estate as Erastus had in the premises be liable to levy of execution at all, the plaintiff, by-his levy, could gain no-better or- greater estate than he found in Erastus. That is, a present estate in fee, to hold upon the performance of that multifarious condition ; and*- on failure so to perform, lose the estate wholly, by its reverting to said Jonathan.
¶8As the merits of this part of the case have not been tried at all, a hew trial must be granted..
¶9An objection is now raised to the levy under which the plain-*311tifi claim's to bave obtained the title of Eras ins Burt. This passed sub sihntio at the¡ trialjbut as the case is drawn up,ibis question is now fairly presented. As a new trial is granted,we are disposed to inform the parties what views the court entertain upon this point also. , ..
¶10Upon recurrence to the levy, we find that the officer did not levy, upon the land, but upon the right, title and interest of Erastus Burt in and unto the land. The land itselfis afterwards well described ; and the officer returns that the appraisers appraised the. premises. Yet the word premises must mean what was levied upon, which we find to be Erastus Burt’s interest in the land-The levy should have been upon the land itself, and the appraisal should have been of the land itself, subject to such an in-cumbrance, describing it particularly. . ..
¶11. As the levy is, we may ask, what interest had Erastus in the', land ? What did the sheriff suppose it to be ? What did the apprais-. ers suppose it to be ? The learned counsel here in court differ, much about this interest; and how can it be ascertained how the appraisers viewed it ?, ., ,
¶12. In the case of Elijah Paine vs. Bindley Webster, et di. decir ded at St. Albans, on the present circuit, [Seep. 101 of this vol* umej] a .similar question was raised and very fully considered, and. the levy considered void. We consider this levy void also.. A; new trial is granted. . .