¶1The revised statute of July 4, 1829, enacts “ that when any execution shall be extended or levied upon ‘ any real or personal estate, and it shall afterwards appear ! that such estate or some part thereof did not at the time of ‘ such extent belong to the debtor, then and in every such case 1 the creditor, his executors or administrators, may commence ‘ and sustain an action of debt, on the judgment upon which ! such execution issued, against the debtor, his executors or ‘ administrators, and recover the amount which may for the ‘ reason aforesaid remain ecpxitably due and unsatisfied.” A similar provision had existed for some time previous.
¶2Where a levy is made upon real estate to which the debtor has no title, the creditor takes nothing. He is a trespasser if he enter upon the land which has been set off to him, and of course, as nothing has been received, the debt, notwithstanding the levy, remains equitably due and unsatisfied.
¶3But in a levy on personal estate the case is different. There the property is sold, and the money arising from the sale is paid over to the creditor. He receives in this way an actual satisfaction of his execution, and so long as he holds the money as his own cannot allege that any thing is legally or equitably due to him.
¶4*124The plaintiff in this .case has received the money which was due upon his execution, and he still holds it. It was raised from the sale of certain goods, a part of which it is now alleged did not belong to the debtor. But it does not appear that the plaintiff will ever be called on to refund, or that he could be compelled to do so if required. The officer may be liable to the owner of the goods, and the plaintiff not be liable to him. Under such circumstances nothing appears now to be equitably due to the plaintiff, and this action cannot be sustained. It should be shown that the plaintiff had refunded the money to the owner, or the officer ; or at least that he had relinquished all right to it, and offered to give it up before he commenced his suit.
¶5New trial granted.