majority">Hosmer, Ch. J.

The plaintiff has brought an action of ejectment, for the recovery of a part of thirty rods of land, with the buildings and vats thereon, and appurtenant thereto, and other implements for carrying .on the tanning business. He claims title, by the levy of an execution, upon which the premises were appraised and set off, together with a barkmill, the possession of which is not demanded. To the validity of the levy it is objected, that the barkmill, and the other implements referred to, were personal property; and besides, not having been defined, that they are unaffected by the levy. It must be admitted, that the barkmill, if it were not part and parcel of the freehold, was not so levied upon and disposed of, as to give the plaintiff any title to it; and from the indefiniteness and generality of the phrase, “ the other implements for carrying on the tanning business,” as well as, perhaps, from their nature, that they were not acted upon by the execution. To this property the plaintiff has no title or claim; but the land, and vats and buildings, of which there may be a seisin, and which only were recovered, were duly levied upon, and set off. It is far from resulting, as the execution was not so levied as to give a title to every thing purporting to be embraced by the officer’s return, that therefore, the levy was utterly invalid. Utile per inutile non vitiatur. Undoubtedly, property was appraised, on which the plaintiff obtained no title; but this operates only to his disadvantage, and constitutes no objection against the levy, which he is endeavouring to support. In Hitchcock v. Hotchkiss, 1 Conn. Rep. 470. the creditor had the fee-simple of land, appraised and set off upon an execution, when the debtor had only a life estate; but it was held, that his title was valid, to all the estate which the debtor had. So, in this case, the creditor has acquired a legal title to all the property duly levied on, by paying more than its value; and this settles the question, so far as relates to the case under discussion.

Both the parties claim title to the premises under Asa Chamberlain; the plaintiff, by levy of his execution, and the defendant, by deed of mortgage, precedent to the plaintiff’s attachment. The mortgage was executed to the defendant and Seth Tibbals, as collateral security to a note made by Asa Chamberlain, payable at the Middletown bank, of which they were indorsers for Chamberlain s accommodation. Before the note fell due, Chamberlain became bankrupt, and declared to his indorsers, his inability to pay it; and likewise told them, that they must make payment of it; and, by agreement made by *85them with Heth F. Camp, to relinquish the mortgage security to him, if he would satisfy the note, he, a few days before its maturity, paid the money due to the bank, and took the note into his possession. The day after this transaction, the defendant and Tibbals released to the said Camp, the estate mortgaged, in fulfilment of their agreement. On the part of the plaintiff, it is claimed, that by the preceding payment to the bank, the condition of the mortgage was fulfilled, (of which opinion, was the Judge below,) and the premises relieved from the incumbrance by mortgage. On the other hand, the defendant inrists, that by the payment made to the bank, and repossession of the note by Camp, who acted throughout as the agent of the indorsers, the indorsers were satisfied, but the note was not paid. The latter, in my judgment, is the correct opinion. Heth F. Camp was not the agent of Chamberlain; nor by Chamberlain was the note paid or extinguished. The intention of the transaction, was, to preserve the security, by the note and mortgage; and the advancement to the cashier, by Heth F. Camp, before the note fell due, a measure which was impelled by reason of Chamberlain's insolvency, and which could have been delayed only a few days, was for the purpose of entitling him to a deed of release, from the defendant and Tibbals. To raise the mortgage, Chamberlain must have paid the note, pursuant to the condition of the deed; but he made payment of it, neither in fact, nor in law. It is a very ungracious pretence, that by Camp’s having anticipated the day of payment, Chamberlain was prevented from the performance of his contract; when this proceeding was had, pursuant to his request, and by reason of his declared inability to perform his engagement.

But, on this subject, it is a decisive consideration, that Chamberlain never was prevented from paying the note. It was capable of being paid by him to Camp, as much so, as that payment might have been made to the cashier, if the note had remained unpaid in his hands; and the supposed prevention of payment, is without any foundation.

That the note has never been paid, in any manner, is, in my judgment, the fair and legal construction of the facts in evidence. The payment was only made by the indorsers, through their agent, to the indorsees, in full of their demand, and the note taken back. The transaction may be assimilated to the payment of the contents of a note, by the first indorsee to his indorsee, and the resumption of the instrument. Dugan v. *86United States, 3 Wheaton 172. Chitty on Bills 309. If, as in this case, the payees and first indorsers, advance the amount of the note to the indorsees, and repossess themselves of it, it is not distinguishable from the case just put. In both instances, the note is not invalidated ; but there is merely presented to the maker, a different holder, to whom the note has become due, and satisfaction must be made. This construction is warranted by the nature of the transaction ; is agreeable to the intention of all the parties to the note ; and is conformable to substantial justice. None of the parties to the note can complain ; and a proceeding both equitable and legal, cannot, unless by a perverted construction, be rendered available to a mere stranger, in which light the plaintiff must be viewed.

The opinion of the Judge below was incorrect ; and a new trial must be advised.

The other Judges were of the same opinion.

New trial to be granted.

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