
    LITTLE v. LIBBY.
    To- constitute a disseisin, the possession of the disseisor must have been verse to the tille of the true owner,, as well as open, notorious, and exclusive.
    The parol declarations of a person in possession of land, are admissible to shew the character and Intent of such possession, notwithstanding the statute of frauds.
    This was an action of trespass quare clausum fregit,- and was tried upon the general issue.' The locus in quo contained thirty-five aci’es, as to a small part of which the defendant pleaded that it was his own soil and freehold, but no question of law arose upon this part of the case. The whole lot,- of which the locus in quo was a part, contained originally one hundred-and thirty-five acres.
    The plaintiff proved the act alleged as a trespass; and that the whole lot, in the year 1780 was regularly conveyed to Moses Little, whose son and heir he was; — that the father'made his will, which was duly approved June 4, 1798 whereby ho devised this lot, with other lands, to the plaintiff.
    
      The defendant proved that about thirty-seven years ago be ■caused the whole lot to be run out, and the lines and corners marked; — that about a year after, he made a fence round the lot, and removed his family upon it; — that he had dwelt ■there ever since, and had kept up and repaired the surrounding fences in the same manner as farmers generally do; — cultivating and improving a part, and claiming the whole.
    To rebut this testimony, the plaintiff proved that in the year 1804 the defendant tendered to him the sum at which the whole lot had been appraised by commissioners, appointed for that purpose, among others,by the Commonwealth; — that in October 1809 the defendant purchased of the plaintiff one hundred acres of the lot, including that end on which he dwelt and had made his principal improvements ; — that he received a deed of it, and had it surveyed by two successive surveyors, to his entire satisfaction. The plaintiff also proved by a witness that they both went to the defendant’s house in 1808, being then on the business of examining .the plaintiff’s lands generally, in that town; — that on this occasion the defendant expressed’his wish to purchase of the plaintiff the 100 acres above mentioned ;— that the defendant a short time after, on seyeral occasions, said that he wished to purchase the residue of the lot; — that six or seven years ago he repeated.the wish ; — that three years ago he said he did not own the land; — that on another occasion the witness, who was agent for the plaintiff, called on the defendant for rent, which he did not then agree to pay, but said it-would do no harm to the plaintiff for Mm, the defendant, to improve the land ; — that about eighteen months since, the witness told the defendant that he had heard he intended to hold the land by possession, which the defendant distinctly disavowed, declaring that he had no such intention; — and that in 1808 and 1816 the defendant made similar declarations of hisyvish to purchase the land in dispute in this action, as soon as he should be able so to do.
    Upon this evidence the Judge who presided at the trial instructed the jury that the proof offered by the defendant seemed to establish the defence, by exhibiting those facts which have been considered as satisfactory evidence of a disseisin, if pot controled or explained by other testimony: and that, of course, it was necessary for thpm to inquire and decide whether the facts proved on the part of the plaintiff, did disprove or control the evidence exhibited on the other side.
    He then informed them that to constitute a disseisin, the possession of the occupant must be notorious, exclusive, and adverse io the title of the true owner ; — that the intention of the possession therefore was a subject of inquiry; — that if the possessor of land hold under the true owner, or in submission to. his title, it would not be a disseisin ; — that they must decide, from the facts proved, whether the defendant thus held possession adverse to the title of the plaintiff, or of Moses Little, or otherwise ; and that they might gather his intention from all his conduct and declarations which had been proved ; — that as he had purchased the 100 acres, and had repeatedly expressed his wish to purchase the 35 acres now in dispute, and disavowed all intention to hold or claim the lands by possession, they were at liberty fro.m these facts to draw their own conclusions as to his intention in entering upon and occupying the lands in question; — that if they should believe that Mioses Little was disseised at the lime of making his will, then nothing passed to. the plaintiff by the will, but as son and heir he took the land by descent; and if he had entered into the land so descended, and become legally possessed of it, then he might maintain this action; — that if at the time the plaintiff went to the dedefendant’s housp in 1808, the defendant had held the land by disseisin for-twenty years next preceding, then he had a right to keep the plaintiff out, and to forbid his entry into and possession of the land ; but that the defendant might, if he were inclined, give up the possession, and permit the plaintiff to enter and become possessed ; — and that if they should be satisfied, from all the facts, that the defendant had admitted the right and title of the plaintiff, and voluntarily yielded up any possessory title of his own, then the possession of the plaintiff was sufficient to maintain this action.
    Under these instructions the jury returned a verdict for the plaintiff; and the foreman, being interrogated by the Judge, said that the jury were of opinion that neither the testator nor the plaintiff had been disseised by the defendant. The questions of law arising upon the facts in this case as reported by the Judge, were reserved, at the request of the defendant, for the consideration of the whole Court.
    
      Orr and Fessenden, for the defendant,
    now contended that, upon the facts reported, the verdict ought to have been for the defendant. 1. There was no entry of the testator or of the •plaintiff within twenty years after the first entry of the defendant ; and so the plaintiff’s right of entry was gone, and he was driven to his possessory action. The parol evidence of the defendant’s declarations was inadmissible, as tending to defeat a title acquired to lands, and therefore contrary to the statute of frauds. It Was enough that the defendant had the open and visible possession more than twenty years, which gave him an interest in the lands, — no matter whether defeasible or not, — and which could not be controled or defeated by mere parol. The tender in 1804 could have no effect, being at best but an offer of compromise. Jackson v. Cary, 16 Johns. 3021 A Iky ns ¶. Horde, 1 Burr. 119. Fisher v. Prosser, Comp. '217. Shaw v. Barber, Cro. El. 830. — 2. Nothing passed to the plaintiff by the devise, so as to enable him to maintain an action without entry; the ancéstor not being seised. Wells v. Prince, 4 Mass. 64 — 67. Had the testator or the plaintiff conveyed the land to a stranger, the grantee must have brought a writ of entry in the name of his grantor. — 3'. If the defendant did not hold adverse to the plaintiff, he must be considered as his tenant at will; — in which case trespass will not lie till after half a year’s notice to quit. A tenancy at will is to. be treated as a tenancy from year to year; and the strongest case for the plaintiff which can be made out from the evidence is, that the defendant was in possession by his consent. Flower v. Darby, 1 D. E. 159. 2 Bl. Com. 146 — 7. Clayton ¶. Blakey, 8 D. & E. 3. Ward v. Willingale, 1 H. Bl. 311. If any action would lie against the defendant, without notice, the remedy should have been in case, and not in trespass. — 4, The deed of 100. acres does not estop the defendant from claiming title by possession to the residue of the lot. If one take a lease of his own land, he is estopped only during the term. Co. Lit. 47. b. — As to the finding of the jury that the defendant’s possession of the land did not amount to a disseisin of the plaintiff, — this, they contended, was not within their province to determine. Disseisin is a legal result from certain facts, and the jury should have been instructed by the Court whether the facts proved constituted a disseisin or not. It was wholly a question of law.
    
      Longfellow, for the plaintiff,
    said that the rule of the cases cited upon the statute of frauds was, that the verbal declarations of a person having an interest in lands cannot be received to transfer that interest to another. It was never held that the declarations of a party in possession could not be received to shew the character of his occupancy. The jury were rightly instructed that to constitute a disseisin the possession must be adverse, as well as open and visible; and the principal question before them was, whether the possession of the defendant was of that description or not. The defendant himself best knew his own motives and intentions, and the relation in which he stood to the owner of the land; and his own declarations afforded the best possible explanation of his acts, which might or might not constitute a disseisin, according as he intended them at the time.
    If then, the possession of the defendant was not adverse, the ancestor was seised at the time of making his will,' and no entry by the devisee was necessary; the possession, in law, following the right, which descended to the plaintiff. But he did in fact enter in 1804, and also in 1808 when he conveyed the 100 acres.
    The possession of the defendant was not a tenancy at will; but was rather a possession as servant of the plaintiff, or at most, a holding by sufferance. Co. Lit. 57. a. But if a tenant at will, he was not entitled to notice to quit, for such is not the common law either of England or this country. It depends wholly on statute. And if it were otherwise, yet here he is a trespasser for culling trees, which is the act alleged in the writ and found bjr the jury. 3 Cruise’s Digest, 554. 9 Rep. 106. a. 5 Cruise’s Digest, 321. Smith v. Burtis, 6 Johns. 197. Commonwealth v. Dudley, 10 Mass. 403. Propr’s Ken. Purchase t>. Springer, 4 Mass. 416. Boston Mill Corp. v. Bulfinch, 6 Mass. 229.
   Mellen C. J.

delivered the opinion of the Court.

The facts in this case present the defendant as having been for a long period in possession of the plaintiff’s land ; but at the same time as having for many years past disclaimed all pretence of title or claim to it; and expressly disavowing any intention of considering his possession as adverse to the rights of the plaintiff. — In such circumstances, nothing but an unbending principle of law ought to defeat the present action, and turn him round to another-remedy ; yet if such a principle, though purely of technical law, should be found applicable to the case, it must of course have its operation. — We will examine and see if such be the fact.

It is not necessary to give any other definition of disseisin than was given to the jury. To constitute a disseisin, the person claiming to have gained a title by disseisin must prove that his possession must not only have continued a sufficient length ’of time, but must also have been open, notorious, exclusive and adverse. — The evidence upon this point having been all laid before the jury, they have decided that neither Moses Little nor the plaintiff was ever disseised of the land in question. This fact being thus settled, the next inquiry is, whether there is any legal objection against maintaining the present action. In the case of Wells v. Prince, 4 Mass. 64. it was decided that, upon the dhath of a devisor, dying seised, the devisee becomes seised without an actual entry, where the lands are vacant and without an occupant, or in possession of a stranger under or acknowledging the title of the devisee. There are numerous facts in this case shewing the acknowledgment of the plaintiff’s title by the defendant; and therefore an entry by the plaintiff in form, before commencing the action was unnecessary, as he was seised before such entry under the devise in his father’s will. But even if this point admitted of any doubt, there was proof submitted to the consideration of the jury tending to shew that the defendant had yielded up to the plaintiff all possessory title, if he had any; and part of the instruction of the Judge to the jury was, that if they believed such proof, it might furnish evidence of what was in law an actual entry; and on that ground they might find for the plaintiff. Their verdict shews they did, believe the evidence and find the fact. The plaintiff therefore, being seised of the lands, and the acts of the defendant not amounting to a disseisin, they must be considered as no more than successive acts of trespass committed on the plaintiff’s land; Such is the principle even where there has been a disseisin, which has afterwards been purged by an entry. Thus if A. six years ago disseised B., B. may recover in an action of trespass for the first wrongful act which constituted the commencement df the disseisin ; but during its continuance B. can maintain no such action for A's intermediate acts. But.B. may enter and put an end to the disseisin; and may then maintain an action of trespass and recover of A. damages for all those intermediate wrongful acts; the entry of B. in such case having a retrospective operation, and giving B. the same rights during the whole period, as though he had not been disseised. In the case before us, the testator was never disseised; — and the plaintiff was never disseised; therefore no special entry was necessary to give the right of action;

But it has been urged that from the facts reported the Court must consider Libby as the tenant at will of the plaintiff; and therefore, as no notice to quit was given, an action df trespass will not lie against him. The relation of landlord and tenant is always created by contract, either express or implied. It cannot exist,without such contract. — What is the evidence of such contract and tenancy in the present case ? On a certain occasion — the time not particularly mentioned — the defendant was called on by the plaintiff’s attorney to pay some rent for the use of the land. The defendant made no agreement to pay any; but said it would do no injury to the plaintiff for him (the defendant) to improve" the land; and we hear of no reply or assent to this observation. On another ohcasion, he denied that he did improve it; which might be consistent with his occasionally depasturing it. — Here, then, is no express contract for the tenancy supposed. — From what facts then is the contract to be implied? A year and a half sinee, the plaintiff’s attorney and the defendant are found conversing about the character of the defendant’s possession ; and he distinctly disavowing the intention, which had been imputed to him, of intending to hold the lands by possession. — Does this conversation recognize any such relation as is supposed ? Does it not clearly shew that neither party had any such idea ? Doe's hot the plea of soil and freehold, which the defendant has filed, shew that he claimed at last to hold the land by his possession, notwithstanding his repeated declarations to the contrary and propositions to purchase ? — The case furnishes nothing but some uncertain and ambiguous facts relating to this point-, from which the defendant’s counsel have inferred the relation of landlord and tenant. But the present defence is not of such a character as to claim from the Court any solicitude to draw conclusions against the support of the action from doubtful circumstances ; and infer a tenancy to defeat it, from acts and expressions which may, with perfect consistency, receive á different construction.

On the whole, we perceive no reason for sustaining the motion for á new trial; and there must be

Judgment on the verdict.  