With the knowledge of all these facts, the plaintiff now attempts to hold property for’which he never paid, and to defeat us of an honest debt in defiance of the common principles of justice.. But it seems, blinded by his interest, he has lapsed into a vulgar error, and imagined that the law will give him what Common justice would deny him.

He is sensible that he ought not in equity to hold property for which he never paid a cent. His conscience informs him, that it is unjust to defraud the plaintiff. He acknowledges, that if the plaintiff had purchased by deed of Allen, and he had taken a subsequent deed, knowing of the former deed, though he should have recorded his deed first, it would not have held against the plaintiff. But he says, creditors do not stand on the same ground as purchasers; and yet the statute last read, by making no such distinction, puts them precisely on the same ground.

As a salvo to his conscience, he principally relies on an almost obsolete maxim of the law, which undoubtedly, in the first rude essays of English jurisprudence, when the rights of property were by no means distinctly understood or pointed out, operated as a beneficial general rule; and it may be considered as a general rule in even the more enlightened sera of the municipal law; but this maxim, when carried rigidly into operation, .bade such bold defiance to the common notions of right and wrong, that perhaps no general rule has more exceptions, than that he who owns the ground owns every thing upon it. Hence. *370we find in the books numerous cases wherein the right of the owner, or he who is interested in buildings or property placed on or growing out of another man’s land, are sanctioned in the Courts. Hence the doctrine of emblements, See. And the nice distinction between that which is nailed and that which is screwed to a building by a tenant, is but a vulgar and natural effort to avoid this unjust maxim.

On the whole we contend, that Allen made a legal contract with Woodworth; that it was accompanied with livery of seisin; that Woodworth had the right of entry, and would have continued to hold it until the contract between him and Allen was fulfilled; that in case of ouster by Allen, Woodworth might have maintained ejectment, and the dwelling-house would have been a proper subject for the writ of habere facias possessionem.

That by our statute the plaintiff, by the levy of his execution, was invested with all the interest and rights of Woodworth in the premises demanded.

That the defendant, by the levy of his execution, was put into the shoes of Allen; that he could not by the levy take more interest in the land than Allen the debtor had: that Allen’s interest in the land was a qualified interest subject to the contract; the fee off the land may be said to have been in abeyance until the fulfilment of the contract.

Therefore if Woodworth could have maintained ejectment upon ouster by Allen, we can maintain it against his judgment creditor, the defendant.

That in an equitable view of the subject, (for in cases which may be any wise doubtful the courts of law will always be moved by considerations of equity,} *371as the defendant never attached or comprised the value of the .dwelling-house in the appraisement which was made on the levy of this execution, he ought not to hold that for which he has never paid. That' as our demand against Woodworth was bona fide, we ought not to be defeated of it in a Court of Justice, contrary to the common principles of justice..

The’ Court directed judgment to be entered for the plaintiff.