majority">Gilchrist, J.

If we assume that Asa Merrill was seized in fee of the premises in controversy at the time when he made his deed to Lydia Ham, on the 3d of August 1831, it follows that by her deed to Jane Ham and others of the 18th of March 1833, the same became vested in those grantees for the uses therein declared. These uses were executed by the statute, and the land became of course vested in Lydia Ham for life, with remainders as limited in the deed.

The defendant was in possession; and as it must in the *304absence of further evidence be inferred, as tenant at will to Lydia. But under the general issue, a tenant in a real action can not set up title in another person, except for the purpose of rebutting the evidence of the plaintiff’s seizin. Bailey v. March, 3 N. H. 274; Enfield v. Permit, 8 do. 512. And where the seizin of the demandant has been proved, evidence of title in another can not be introduced by a defendant.

Such seems to be the fact in the present case. The statute provides (N. H. Laws 102) that upon the extent of an execution upon lands, “ the sheriff shall deliver possession and seizin thereof to the creditor or his attorney,” and make return of his acts upon the completion of the levy; therefore the plaintiff became seized and possessed of the land, and the return is complete evidence of the fact. It can not therefore be met by evidence that a third party, not in possession at the time of this transaction, had really a title to the land. It is sufficient, if that is the ease, that the law has provided her the means to vindicate her rights if she see fit to do so. The plaintiff is not to be required to enter into a contest with this defendant concerning the rights of another, for if he prevail, the result will not be conclusive of her rights.

It is well settled that the extent of an execution upon land in which the debtor has any interest, though less than a freehold, transfers that interest to the creditor. Adams v. French, 2 N. H. 387. There must therefore be

Judgment on the verdict.

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