
    John S. Tyler et al. versus Samuel Hammond.
    Where a deed of a parcel of land, after describing it by bounds and admeasurements in feet and inches, contained the words—“ or however otherwise the same is bounded or reputed to be bounded, being the mansion-house and land thereto belonging,” — it was held, that this sweeping clause did not enlarge the grant; although if these general words had stood alone, they would have carried the mansion-house and land belonging to it not embraced by the particular description.
    Where a deed of land de'scribes it as bounding on a road, but sets forth metes and bounds which plainly exclude the road, no part of the soil and freehold of the road passes by the grant.
    The lessee of an easement may disseise the lessor during the continuance of the term, by taking exclusive possession of the land against the will of the lessor. Thus, the lessee of an easement in a dock, may disseise the lessor by converting the dock into a wharf.
    A deed duly executed, acknowledged and recorded, is always admissible evidence to prove a grant, whether the grant is a valid grant or not.
    Where two persons claiming the same parcel of land, do not derive their titles from the same grantor, the last purchaser cannot object that the deed to the former was not on record at the time of the last purchase.
    Thus, where the demandant who claimed under an ancient deed not recorded, bad not been in the visible possession of the land for more than forty years, the same having been used as a highway during that period, and the tenant, upon the discontinuance of the way, purchased without notice of such deed, from a stranger to the demandant’s title, it was held, that such deed, which had been subsequently put upon record, was admissible evidence in support of the demandant’s title; though if the demandant and the tenant had derived their titles from the same grantor, the deed would not have availed the demandant.
    Where a grantor, for a consideration named, conveyed in fee a parcel of land, the grantee “yielding and paying thereout a quitrent for the same,” annually forever to the town of Boston; and likewise, “ for the consideration aforesaid,” quitclaimed all his right in a parcel of land adjoining the first; both of which parcels originally belonged to the town; it was held, that the quitrent had reference to the first parcel only, and that the payment of it by the grantee did.not estop him to allege a disseisin by him of the town, of the other parcel.
    Where a dock, of which the owner of an adjoining wharf claimed to be seised, was filled up by the town, and being so filled up, was used together with the wharf, ns a highway, and afterwards the whole was paved by the town, though it did not appear that the way had been laid out according to the statutes, it was held, that the acts of the town amounted to a disseisin of the dock, but that they were equivocal in respect to the wharf, and it was a question for the jury to determine whether such acts were done with intent to disseise.
    In ascertaining the value pursuant to the Betterment act, of land recovered in a real action, with and without the improvements made by the tenant, the land is to be estimated with all its privileges and appurtenances and subject to all its incum brances existing previously to the making of the improvements.— So that if the tenant, by erecting a building, extinguishes ao easement to which as owner oi other land he is entitled, the land in controversy is to be valued in the same man ner as if there had been no such extinguishment.
    Where a tenant holds land by a defective title and an easement in it by a valid title the easement is not extinguished by unity of possession. If in a writ of entry the tenant pleads the general issue, whereby he claims the fee, . but fails to support his plea, he is not thereby estopped from setting up a claim to an easement in the land.
    This was a writ of entry, commenced on September 12, 1827, in which the demandants counted on a seisin of their father, Royal Tyler, within thirty years, and a disseisin in his lifetime by the tenant, of a parcel of land in Boston, bounded northerly on land of Hammond, (the tenant,) 28 feet 6 inches, easterly on the west line of Conduit alley extended over and across an ancient dock to the highway called Dock Square, 50 feet, southerly on the above mentioned dock, 30 feet, and westerly on land late of Joseph Tyler, 50 feet.
    .The tenant pleaded the general issue, which was joined.
    He pleaded further, that he and those under whom he claimed, had been in the actual possession of the land with the appurtenances, for the space of six years and more next before the commencement of the action, and had greatly increased the value thereof, &c. and he therefore prayed, that the jury, if they should find a verdict for the demandants, might also ascertain the increased value of the land by reason of the buildings and improvements made thereon by the tenant and those under whom he claimed.
    And the demandants also required that the jury should ascertain what the value of the demanded premises would have been had no buildings or improvements been made by the tenant, &c.
    The cause was tried before the late chief justice Parker.
    
    The demandants introduced a deed from the town of Boston to Valentine Hill and his associates (one of whom was Edward Bendall) of November 29, 1641, of all the waste ground from the point of the marsh between William Tyng’s pale and John Lowe’s house, to the uppermost corner of Edward Tyng’s propriety near the key already staked out, and so round by Edward Bendall’s to the point before mentioned, for building wharves, &c. for a term of years : which in 1649 was fixed at eighty years from the year 1646.
    Also a deed of August 29, 1645, from Bendall to John Lowe, of a parcel of land 60 feet in length, east and west, and 40 feet in breadth at the east end and 44 feet in breadth at the west end, bounded south by the cove, east and west by land of Bendall, and north by the highway, [Ann Street,] to hold for the term granted by the town (as before mentioned), provided that Lowe should leave 6 feet next the water side to pass and repass and to land goods upon, and should maintain the wharf, and that it should be lawful for Bendall to take wharfage for all goods except Lowe’s.
    Also a deed of February 28, 1649, from the town of Boston to Lowe, of the reversion of a lot 90 feet long on Ann Street northward, and 72 feet on the dock southward, bounded on Nehemiah Bourne’s warehouse on the west, and by Bendall’s dock on the east, with the right of wharfage, dock-age and moorage ; in consideration whereof Lowe binds himself, his heirs, &c. to pay the town the sum of 18 shillings per annum from the date of the deed forever ; and he engages the land for security of payment of that sum, so that if it be not paid in ten days after the expiration of each year, the same being lawfully demanded, then it shall be lawful for the town to distrain &c. for the use and benefit of the free school of Boston, to which end it is appointed.
    
      The parallelogram contained by the dotted lines represents the demanded premises.
    
      
    
    
      Also a deed of January 26, 1652, in fee with warranty, from Lowe to Sampson Shore, of a lot 30 feet in breadth from Gibbon’s (formerly Bourne’s) warehouse, bounded “ on the west with the said warehouse,” on the north, by the street, on the south by the cove, and on the east by Lowe’s own land, containing thirty feet in breadth unto the water side at the dock ; and Lowe covenants not-to build on the land between Shore’s land and the well, so as to darken the light which Shore, his heirs &c. may put forth.
    Also a deed of mortgage of July 14, 1656, from Shore to Samuel Adams, of the tenement or house in which Shore then lived, with the land thereunto belonging, near adjoining to the cove and near the conduit in Conduit Street, “bounded on the west with the said warehouse,” the land being the same which Shore purchased of Lowe.
    Also die last will of Thomas Dyer, made in 1676, in which he devises “ his interest in his house in Boston ” to his son John Dyer.
    Also a deed of June 1, 1726, from John Dyer to William Tyler, for the consideration of 1040Z. of a brick messuage or tenement, with the land under the same, bounded northerly on Ann Street, 30 feet, more or less, westerly on house and land in the possession of Thomas Hancock, 49 feet more or less, southerly on the wharf or land lying before the granted tenement, 30 feet, easterly on a lane or passage-way belonging to Tyler, 49 feet more or less, or however otherwise bounded or reputed to be bounded ; yielding and paying thereout as a quitrent for the same to the town of Boston the sum of four shillings and sixpence per annum, on the last aay of February, every year forever thereafter, the same being lawfully demand-^e parcel above described is conveyed with a general warranty. Dyer, likewise, V for the consideration aforesaid,” quitclaims “ all his right, estate, title and interest of and in the wharf lying before the said granted dwellinghouse, with all wharfage, dockage, privileges and appurtenances.”
    This deed was objected to by the tenant, it not having been recorded until 1828 ; but the objection was overruled and the deed admitted.
    The demandants introduced various probate accounts ren dered by the administratrix of the estate of Royal Tyler, the demandants’ grandfather, showing occasional receipts of wharf-age, and one expenditure for repairs of wharf, and two pay ments of quitrent to the town. These accounts extend from 1774 downwards. They were objected to by the tenant as res inter alios acta.
    
    Also a deed dated September 25, 1780, from John S. Tyler to his brother Royal Tyler, conveying all Iris title “ in the mansion-house of his father, fronting on Ann Street, or however otherwise bounded, with all his right &c. in the premises with the appurtenances, or to any part thereof, or which had been used, occupied or enjoyed as part or parcel of the same.”
    William Pierce,
    a witness aged 82 years, called by the demandants, testified that in 1761 William Tyler lived in the house in front of which the demanded premises then" lay ; that the house had a kitchen end to it, which projected from the main body of the house, and which with a fence running from that end westerly and then turning and running northerly to Joseph Tyler’s house (the one adjoining) formed a small yard, from which a gate opened upon the wharf, and that it was about 22 feet from that gate to the capsill of the wharf; that he saw the distance actually measured from Joseph Tyler’s to the capsill of the wharf, and it was just 22 feet; that the wharf widened as it went down eastward ; that the first filling up of the - dock was in 1764, when it was filled up down to Joseph Tyler’s store, and a solid frame head was built there ; and that the second was in 1777, when the dock was filled up as far as the swing bridge, (which is far eastward oi the demanded premises) the bricks of Hancock’s stores, which had been burnt, being used for that purpose ; that the demanded premises were paved 38 years ago ; that the wharf was used as a common street; that he has seen Royal Tyler (grandfather of the demandants) repairing the wharf, and that on one occasion R. Tyler put down a piece of capsill about 50 feet long, in front of his store ; and that R. Tyler used to have grindstones landed on the wharf opposite his house and store.
    Joseph Woodward, a witness for the demandants,
    testified that Royal Tyler kept store on the north side of the dock; that the wharf was from 25 to 30 feet wide against his estate ; that he (the witness) had often passed down the wharf in a chaise, and could conveniently turn round against R. Tyler’s store ; and that oyster boats lay at the wharf, and the oystermen had their benches upon it.
    Charles Stimpson, a witness for the demandants,
    testified that the dock in front of the demanded premises was filled up in 1783 or 1784, by order of the selectmen, with old bricks, &c.; that after it was so filled up, they drew a building upon it, and while they were drawing it on, Royal Tyler, father of the demandants, forbade their doing it, asserting title to the ground ; that they continued to draw by a rope, and when the building came upon the line of the land claimed by him, he cut the rope, but that they persevered and the building was drawn on ; that the building was used for a fish market, and afterwards it was burnt.
    These and other witnesses for the demandants testified that the dock opposite the demanded premises and elsewhere in the neighbourhood, was used for oyster boats, which paid wharfage and dockage.
    The tenant put into the case a deed, dated May 8, 1800, from Royal Tyler to William Scollay, conveying two thirds of a parcel of land with the buildings thereon, bounded “ northwesterly on Ann Street, 31 feet 6 inches, northeasterly, on Conduit alley, 50 feet 2 inches, southeasterly on Dock Square, 28 feet 6 inches, and southwesterly, on the estate of the late Joseph Tyler, 48 feet, be the same more or less, or however otherwise the same are bounded or reputed to be butted and bounded, being the mansion-house and land thereto belonging, improved by the late Royal Tyler at the time of his decease.”
    Also a deed, dated June 13, 1807, from Scollay to B. Hudson and J. Kingsbury, — another, dated July 9, 1823, from Hudson to Kingsbury, — and another dated April 5, 1825, from Kingsbury to the city of Boston, conveying the grantor’s interest in the same two thirds by the same description.
    Also a deed, dated June 9, 1825, by which the city of Boston conveys to the tenant, eleven undivided twelfth parts of the parcel marked A in the plan on the next page, and the whole of the parcels marked B and C.
    
      The city also quitclaims to the tenant all its estate in the land between the parcel A and Hammond’s old store, hitherto called Conduit alley, and in the land formerly used for the cistern of the old conduit, and in the land between A and B, and between B and C, and between C and Hammond’s old store, and in the land in the centre of the four parcels thus released. The city gives a general warranty of the three parcels A, B and C, and it warrants the parcels quitclaimed, against all public and private rights of way over the same. The deed contains a covenant, that as soon as the title to the remaining twelfth part of it shall be vested in the city (in pursuance of a contract made for that purpose) the same shall be conveyed to the tenant.
    Also a deed dated March 9, 1674, from Eliakim Hutchinson to Wharton, Saffin and Tayler, of “ that part of the dock or cove in Boston, commonly called the town dock, which lyeth before the warehouses and wharves of the said Wharton, Saffin and Tayler, running upon a direct line from the easteimost bounds of the wharf late of Sampson Shore, now in the possession and improvement of Thomas Dyer, unto the wharf
    now in the possession of said Richard Wharton, late belonging to John Woodmansey, ranging with the outmost corner of said Wharton’s salt house next the dock’s mouth, being in length 73 feet or thereabouts, and all the land from that front to their own respective lands inwards,” habendum during the term yet to come according to the grant of the dock or cove by the town of Boston to Hill and Bendall.
    Also an extract from the town records, under date of April 12, 1675, in which it is recited that Wharton, Saffin and Tayler have lately set up a frame for a wharf in the dock before their warehouses near the dock’s mouth, without the consent of the selectmen, which may be prejudicial to the interest of the town, and it is ordered that they take away the frame within twenty-four hours, and it is further ordered, that if they shall think meet to remove the frame further back, within eight feet of their new warehouse, they have liberty hereby granted to do it, but not to exceed the said eight tent in any part thereof. Under date of April 24, it is entered “ the aforesaid wharf removed to satisfaction, according to orders foregoing.”
    
      The local situation of the demanded premises on the following plan, will readily be seen by comparing the plan with the one given atp 197.
    
      
    
    
      Also a vote of June 12, 1716, that the selectmen be empowered, in case they shall judge it for the benefit of the town, to make some addition to the wharf on the north side of the town dock as they shall see meet.
    Also the report of a committee of the town, made August 1, 1757, that the town has a good right in and unto the said dock and that the abutters thereon have a right to dockage, wharfage and moorage there ; so that the town has no right •to fill up said dock ; and if the town have that right, the committee are of opinion that it will not be for the interest of the town to fill up said dock, either in whole or in any paic: which report was accepted.
    Also, under date of 1761, a vote appointing a committee to confer with abutters on the town dock relative to filling it up ; a report of the committee recommending to fill up the dock as far as a straight line running from the southwest corner of Joseph Tyler’s shop to a few feet east of where the town’s shops lately stood, but to leave part between that line and the swing bridge open.
    Also a vote of 1770, empowering the selectmen to fill up the dock from the southeast corner of the town’s land to the warehouse of John Fayerweather’s heirs on a straight line to the northwest corner opposite to Joseph Tyler’s shop.
    Samuel Hastings, a witness for the tenant,
    testified that be had known the locus in quo for 32 years ; that he saw the cellars of tile buildings, recently built upon it, while the laborers were digging them ; that there was a row of upright posts running along in front of the old house, and he measured the distance of them from the kitchen and found it to be exactly thirteen feet; that the tops of the posts and capsill were rotted off; that the posts must have been very old, say 100 years ; tnat outside of the posts there were promiscuously brick bats, timber, trunks of' trees, oyster shells and rubbish, and no appearance of a wharf; that he occupied a part of the mansion-house, and that the land in front of it was always used as a highway, and that the neighbours were not allowed to put any thing on it.
    Francis- James, a witness for the tenant,
    testified that the dock was filled up in 1777 or 1778 ; that he was employed by the selectmen to pave the whole of Dock square in 1796, and that he paved close up to the houses ; that it was previously a mud hole, and they covered it three or four feet deep with gravel and then paved it; that trucks used to stand there ; that he also paved the vegetable market (in 1808.)
    The demandants then called other witnesses and introduced votes and proceedings of the town, of different times, from 1725 to 1784 ; and particularly the report, dated June 10, 1783, made by James Sullivan, Joseph Waters junior, and Thomas Dawes junior, a committee appointed by the town, “to examine the claims of the abutters on the town dock.” The committee report, that the claims of the abutters, as well as the claims of the town, in and to the dock, are exceedingly numerous, ancient and perplexed, and they conclude as follows :— “Upon the whole, the committee, having considered the long, uninterrupted possession of the abutters and their predecessors, and having looked into a large number of deeds and town records, are of opinion, that the town has but little more than a right in common to that part of the dock-meant to be filled up, and that it is most convenient, in the choice of difficulties, to make some composition with the abutters and to make them some offer for a -release of their right, be that right more or less.”
    The jury were instructed as follows : —
    The demandants must prove a seisin in their ancestor within thirty years, and as they have proved no actual possession for forty-four or forty-five years past, this claim would come within the statute of limitations, if the possession of the town for that period had been unqualified ; but there being some question whether the town’s possession was by virtue of the power to lay out streets, or as claiming the land by adverse title, an investigation of the title became necessary.
    The demandants claim title under Royal Tyler, who claim ed under William ; and *here is no evidence that the wharf had been extended subsequently to the deed of John Dyer to William Tyler in 1726.
    The inquiry would then be, what were the nature and extent of John Dyer’s title. The deed of Dyer to Tyler, so far as related to the locus in quo, was equivocal, and might pass either a fee or an easement, according as his title might turn out to be. As the deed itself does not grant a fee in the wharf, it is necessary to go back to the predecessors of John Dyer, the most prominent of whom is John Lowe. Whatever title Lowe had, passed to Dyer. Lowe’s title was derived from two deeds, the first from Edward Bendall, which was a lease expiring in 1726, the second, from the town, granting the reversion of the leasehold premises. The lease from the town to Bendall asserts the title of the town in the dock, and as both parties claim under it, it must be taken to be established.
    From the deed of Bendall to Lowe it is clear that the lot granted by him was then 40 feet deep at the east end and 44 feet deep at the west end, including the wharf and reserving a way of 6 feet wide next the cove. By this deed Lowe acquired no other right íntiie dock than to land goods. He did not acquire an inch beyond the wharf, and could not extend it.
    The deed of the town to Lowe does not give any land outside of the wharf, which would come into the town’s possession at a future time, but only grants the easements and privileges that would fall in at the expiration of Bendall’s lease.
    The dimensions of the east and west boundaries are not specified, but the lot is bounded northerly 90 feet on Ann street, 72 feet on the dock southerly, westerly by Bourne’s warehouse, and easterly by Bendall’s dock.
    It is agreed for the demandants, that this shows that the vharf had been extended so as to make the eastern boundary on the dock ; but there would be difficulty in this construction, for the dock did not probably run up to Ann Street; the deed may have meant, partly on the dock and partly on the land. In the former deed the boundary is said to be on Bendall’s land, and the jury would judge therefore whether the word dork was not used by mistake for the word land.
    
    
      It is also observable, that this eastern boundary is from 50 to 60 feet below the locus in quo. It is not likely that the wharves at that time projected far from the upland ; for in 1675 the town compelled Taylor, Wharton and Saffin to take the wharf which they had built, back to within 8 feet of their warehouses.
    It might be difficult, though important, to ascertain where the wharf was. It is said that it was extended as far out in 1726 as it was in 1784. When Dyer made his deed it was extended. The witnesses show that there was a space between the house and the dock. Pierce saw it measured in front of Joseph Tyler’s and it was exactly 22 feet. If he is correct, the utmost limit would be 22 feet ; and this may have been acquired by disseisin, and there may have been a general enlargement by the tenants against the town, and it may have been done before the time of Dyer, and if it was done, the demandants might have become seised of the 22 feet.
    The tenant’s counsel argued, that all the interest of Royal Tyler in the premises, passed by his deed to Scollay ; but for the purposes of the trial the judge ruled otherwise.
    The demandants contended, that if they did not acquire title by Dyer’s deed, they had acquired a title by disseisin, and had exercised acts of ownership over the wharf and dock; but the jury were instructed, that all the acts relied upon were as consistent with the right of easement in the soil, as with a fee ; they were all equivocal, and not much could be drawn from them.. Likewise, that very little could be drawn from the votes of the town, on either side ; the abutters had a right to resist the filling up, whether they had a fee or an easement in the dock.
    It was contended by the tenant, that the town had acquired a perfect title by disseisin more than 40 years ago, by filling up the dock and destroying all beneficial use of it and the wharf, and paving the land up to the line of the house, without process of law. Upon this the jury were instructed, that but for the use made of it by the towrn, it was clear it would be an entire disseisin of the proprietors ; it was done in open day and in presence of the party resisting. It was said this was qualified by the use the town meant to make of it, and the question is, whether it was a street. There is no evidence that it was laid out originally as a street according to the law of the land. no notice nor acceptance by the town; there had been disputes respecting the dock. If the jury were satisfied the act of the town was merely to make a street, it was not a disseisin. It depended on the view the jury should take of the intention with which it was done. The demandants’ ancestor would have had a right of action for the disturbance of his easement, if he had any, or for the land itself, if he owned it.
    
      March 15th. 1830.
    The jury returned a verdict, that the tenant did disseise the father of the demandants of two undivided third parts of a parcel of the demanded premises, beginning at a point 48 feet southward from Ann street and in the boundary line between an estate formerly of Joseph Tyler, now of N. Faxon, and the estate formerly of Royal Tyler, and running eastward, 28 feet 6 inches, by the southward boundary of the land conveyed by Royal Tyler to William Scollay, to a point on Conduit alley 50 feet 2 inches from Ann street, then southward on the west line of Conduit alley, 22 feet, then westward, 26 feet 9 inches, to a point in the boundary line first named, and then northward by the same boundary line, 22 feet, to the point begun at.
    
      Curtis and C. G. Laringe for the tenant.
    In considering the. question of the admissibility of Dyer’s deed to Tyler, it is material to ascertain what was the extent of the grant of the town to Lowe in-1645 ; and it is demonstrable that this grant did not embrace the locus in quo. Such being the fact, the deed of Dyer was inadmissible, because the town being the original owner of the fee, and there being no record of any conveyance from the town, and no evidence of possession by the demandants’ ancestor, within forty years preceding the grant from the town to the tenant, the tenant cannot, be prejudiced by the production of a deed of this description, of which he never had notice until after his purchase.' To admit it is to make void the statute for the registry of deeds, and the statute of limitations. The only exception to the statute for the registry of deeds, is that of notice to the purchaser ; and the only case in which an ancient deed not recorded is ever admissible, is where it has been accompanied and followed by possession ; which is considered as constructive notice to all the world. Here notice is attempted to be shown by evidence of mere possession by the demandants’ ancestor, more than forty-four years before the bringing of this suit, and forty-two before the conveyance under which the tenant claims. It is to be observed that this is the only case in which this question could arise ; had any other person been in possession during that time, or had the town used the land in a different manner, the statute of limitations would have been a bar.
    If the deed, on being admitted, would show a good title, still it is inadmissible because it was not seasonably recorded, and the tenant was not bound to look back further than forty years, for other notice of adverse title. That is the legal limit, and any thing anterior to forty years is not legal notice. The statute for the registry of deeds prescribes that deeds not recorded shall not avail against subsequent purchasers. To this rule the Court have made an exception in the case of notice to the purchaser, of a prior title. But another statute has provided that possession, to give title, must be within forty years ; and by parity of reasoning-, it must be so, to constitute notice of title. The foundation of the statute of limitations is the consideration, that if a party suffers his land to lie unclaimed for forty years, he shall be presumed to have granted or abandoned it; and a purchaser cannot be required to look further back. To permit the demandants, who had no recorded title when the tenant purchased, to come now and make out one by introducing a deed to be rendered admissible by parol testimony of possession more than forty year’s ago, and thus to destroy the title of the tenant which was perfect' on the records, seems monstrous ; and yet such is the doctrine contended for. The tenant found that the town was the original owner of the fee ; that it had made no conveyance ; and that for forty years past it had used the locus as a public highway, without having obtained it by the forms of law prescribed' where the land of individuals is taken for such purposes ; and that no one, during that time, had had or claimed adverse possession ; and what better title could he expect or wish to find ? This is a new question, as to what constitutes legal notice of prior title, and it is for the Court to decida whether the time within which such notice shall be given, is or *s not material; and if it is, whether a better rule can be established than the statute of limitations.
    It is said in answer, that as the town only used the locus as a street, which might be in pursuance of an easement only, and therefore did not imply ownership of the fee, the possession of the demandants’ ancestor must be presumed to have continued as to the fee, and not to have been lost by such user by the town, and therefore that the tenant was bound to see who was the owner, and not to trust to this possession of the town. But this answer does not meet the difficulty ; for the true question is, not whether the demandants’ ancestor had title, but whether, if he had, the tenant was duly notified of it before he purchased. If a grant from the town to the demandants’ ancestor had been recorded, the answer would be entire, because the tenant would thereby have had due notice of ownership of the fee, and which would not have been incon sistent with such enjoyment by the town. But if the ancestor’s title was acquired by deed not recorded, then as there was not any possession within forty years, there was no means foi the tenant to obtain notice ; and if acquired by disseisin, to permit a disseisor to show title by evidence of possession further back than forty years, would be to make a title by disseisin, in this respect, more available than one by deed.
    But this answer is unsatisfactory for another reason, namely, that the locus was never laid out as a street, and the demandants therefore voluntarily relinquished that possession and those badges of ownership, which alone could have constituted notice.
    The only three sources of legal inquiry would show title in the town. Thus, in the registry of deeds, the town would be found the original proprietor, with no recorded grant from it, and in tracing up the title from the death of the demandants’ ancestor, no specific conveyance to him or his predecessors would appear : — relying on the statute of limitations, it would be found that the town had had exclusive enjoyment for more than forty years : — and upon recurring to the legal proceedings required by law for laying out streets, it would appear that none were ever adopted here. The inference therefore of ownership of the fee by the town, would seem irresistible.
    But a further objection to the deed is, that it shows no title. ■ ft purports to be from Dyer, but there is no evidence that he ever had any title. For aught that appears, his title commenced with that act as a disseisin, and if it did, he never acquired a valid title, for the statute of limitations then required sixty years’ possession to constitute a bar ; but this deed was made in 1726, and the town filled up the dock and converted the wharf into a street in 1783, thus obtaining possession ; and the- title not being perfect, it may be that he was evicted by writ of right or surrendered his title. The case shows an enjoyment by the demandants’ predecessors, of easements merely, in the locus in quo, and not a seisin in fee. The evidence shows no acts necessarily presupposing ownership of the fee ; but on the contrary, all of them are entirely reconcilable with the easements intended to be granted in the original lease; and it is an established principle, that every presumption is in favor of the position, that the possession is- in subordination to the title of the true owner. The jury should have been instructed, that as these acts were equivocal, the demandants’ predecessors should be considered as in the enjoyment of easements only. Jackson v. Sharp, 9 Johns. R. 163 ; Jackson v. Waters, 12 Johns. R. 365 ; Jackson v. Thomas, 16 Johns. R. 293.
    We contend further, that in fact there was no act done which under any circumstances should be construed to be a disseisin of the town, considering the nature of the property and the interests of both parties. The lease to Bendall contained express permission to build wharves, the erection of them being one of the considerations of the grant; and all acts done, therefore, during its continuance, were in pursuance of the title acquired under that lease, and not adverse to it. But we rely on the principle of law, that there could not have ccurred a disseisin before this deed was made, because the lease of the locus from the town had not then expired; and during that tenancy there could be no disseisin of the town. But if the lease was forfeited, the town was not bound to "enter for the forfeiture. And as the deed of D^er to Tyler was made before the expiration of the lease, the quitclaim C0UW pass only what title Dyer had, which was to easements under the grants of the town, and not a feeby disseisin ; and the demandants claiming under that deed, they cannot set up a better title than Dyer, their grantor, had. Jackson v. Parker, 3 Johns. Cas. 124 ; Jackson v. Sharp, 9 Johns. R. 163; Brandt v. Ogden, 1 Johns. R. 156 ; Wallingford v. Hearl, 15 Mass. R. 471 ; Lit. § 279 ; Jackson v. Schonmaker, 4 Johns. R. 390 ; Doe v. Perkins, 3 M. & S. 271; Stevens v. Winship, 1 Pick. 327 ; Jackson v. Johnson, 5 Cowen, 74 ; Kennebec Purchase v. Laboree, 2 Greenl. 283 ; Tinkham v. Arnold, 3 Greenl. 120 ; Brandter v. Marshall, 1 Caines’s R. 394 ; Doe v. Danvers, 7 East, 299. Nor was any entry necessary after the termination of the lease, for the town was then in the enjoyment of the locus as a highway.
    The introduction of the quitrent in the deed of Dyer to Tyler, is an acknowledgment by the grantor and grantee of the origin of their title, and of the rights of the town. And the payment of the rent in 1774 by the representatives of Royal Tyler, is also an acknowledgment of the town’s title, and his descendants are estopped thereby from affirming that their ancestors were disseisors. It may be said that the deed of Dyer contains no admission of the town’s title in relation to the soil on which the wharf was erected, the quitrent being limited to that part of the granted premises which lay north of the wharf. To this we answer, that as this deed was a secret transaction between Dyer and Tyler, not recorded, the town and those claiming under it could have no knowledge of Tyler’s intention (if he had any such) to limit his payments of the rent to the north part of the land, but the treasurer must have received it as applicable to the whole estate, upland and flats, in one of which Tyler had a fee, and in the other, easements. If the deed had been recorded, it might possibly have been considered a disseisin of the town, and the acceptance of the rent of Tyler, under such a grant, he holding under it notoriously, might have been considered as an acquiescence on the part of the town, which after a lapse of time would bind the town ; but no such consequence can be legally predicated a deed not recorded. Jackson v. Davis, 5 Cowen, 123.
    
      Next, we contend that the acts of the town amount to a egal disseisin, as distinguished from a trespass or temporary injury. The law has provided "the mode for the town’s quiring a right of way on another’s land, and when the way is assumed without recurrence to that mode, the legal presumption is that it is claimed as matter of right. The acts of the town were not equivocal. They had all the characteristics of a disseisin ; they were under a claim of right and in defiance of resistance ; were destructive of the usufructuary enjoyment by the demandants’ ancestor ; were possessory and of continued possession ; were followed up by acts of ownership, such as raising, paving, widening, &c. ; and constituted an entire alteration of the nature and character of the estate, converting it from a wharf into a street. As to the nature of disseisin, see Lit. § 279 ; Bracton, 161 ; 4 Dane’s Abr. 721; Fishar v. Prosser, Cowp. 217 ; Boston Mill Carp. v. Bulfinch, 6 Mass. R. 229; Cumings v. Wyman, 10 Mass. R. 465 ; Stearns on Real Actions, 1, 5, 49. That a corporation may disseise, 2 Fitzh. N. B. 155 A ; 1 Rol. Abr. 661.
    The locus in quo passed by the deed of R. Tyler to Scollay. The land granted is bounded on Dock square, and the boundary will control the admeasurements. The words “ more or less ” are also inserted in the description. The demandants themselves found their claim to a part of the premises in question, upon a grant from John S. Tyler, in language very similar to that used in the deed to Scollay ; the only material difference is in the absence of measurements in J. S. Tyler’s deed. Davis v. Rainsford, 17 Mass. R. 207 ; Powell v. Clark, 5 Mass. R. 355 ; Cate v. Thayer, 3 Greenl. 71 ; Keith v. Reynolds, ibid. 393; Howe v. Bass, 2 Mass. R. 380; Com. Dig. Grant, E, 6, 9, 10; Doe v. Collins, 2 T. R. 498 ; Roberts v. Karr, 1 Taunt. 495. A conveyance of land bounded on a street, passes the land to the middle of the street. 3 Kent, 349. 1
    
      Sullivan and S. Hubbard, for the demandants,
    cited in regard to the admissibility of the deed of Dyer to Tyler, Bull. N. P. 255, 256 ; Bac. Abr. Evidence, F; Stockbridge v. West Stockbridge, 14 Mass. R 260.
    To the point that the deed to Scollay gave him no part of the street, they cited Perley v. Chandler, 6 Mass. R. 454 ; Robbins v. Borman, 1 Pick. 122 ; Commonwealth v. Peters, 2 Mass. R. 125 ; Alden v. Murdock, 13 Mass. R. 255 ; Stackpole v. Healy, 16 Mass. R. 33 ; Jackson v. Hathaway, 15 Johns. R. 447 ; Whitbeck v. Cook, ibid. 491.
    
      March 29th, 1830.
   Wilde J.

delivered the opinion of the Court. This is a writ of entry in which the demandants count on the seisin of Royal Tyler, their ancestor, and a disseisin in his lifetime by the tenant. As the tenant claims to hold under a conveyance from Royal Tyler, I shall first consider whether any part of the demanded premises passed by that conveyance. The land conveyed is bounded northwesterly on Ann street, there measuring thirty-one feet six inches, northeasterly on Conduit alley, there measuring fifty feet two inches, southeasterly on Dock square, there measuring twenty-eight feet six inches, and northwesterly on the estate of the late Joseph Tyler, there measuring forty-eight feet. This is a very particular description of the land intended to be conveyed, in respect to which there can be no doubt or uncertainty. The lines are short, and were measured, no doubt, with great exactness ; and therefore a mistake in the side lines of twenty or thirty feet cannot be supposed; and besides, I do not understand that any error appears by reference to the boundaries, at least not so as to affect the present question. The demanded premises at the time of the conveyance, were wholly within the limits of Dock square, and consequently were excluded by the terms of the description. The particular description, therefore, taken by itself is perfectly clear ; the only doubt, if there is any, arises from a sweeping clause which follows, and which it is contended enlarges the extent of the grant. The words are “ or however otherwise the same are bounded, or reputed to be butted and bounded, (being the mansion-house and land thereto belonging improved by the late Royal Tyler esquire at the time of his decease.)” That these general words, if they stood" alone in the deed, would be sufficient to pass the demanded premises as part and parcel of the mansion■nouse estate, cannot I think be controverted ; but the whole description is to be taken together, and is to be so construed that its rarious parts may, if possible, be consistent with each other ; and if this cannot be done, then the p irticular description is to be taken as expressing the intention of the parties, rather than general words or those sweeping clauses which are frequently inserted by the conveyancer, and which are passed over by the parties with little notice.* The first part of the clause is very common in deeds of land, but is rarely of any importance. It is useful only when there is some inaccuracy or deficiency in the particular description ; but in cases like the present where the boundaries are certain, and the measure exactly ascertained, a reference to reputed bounds, or bounds not named, cannot vary the construction of a deed. As to the latter part of the clause, that is not inconsistent with the particular description. The land described was land belonging to the mansion-house ; but it does not follow that all the land so belonging was intended to be conveyed. I admit it would be otherwise, if this clause stood alone ; but taken with the other words of description, the intention of the parties appears sufficiently clear. There is a strong case in Cowper, (too strong perhaps) to show the effect of a sweeping clause in a deed, after a particular description. In that case, (Moore v. Magrath, Cowp. 9,) lands had been conveyed for the purpose of making a family settlement, and two pieces of land were particularly described in the deed, after which description this clause was added, — together with all other his lands in Ireland.” The grantor owned other lands in Ireland not described ; but the court held, that as the land sparticularly described were alone mentioned in the preamble as the lands intended to be conveyed, those lands only passed, and that nothing passed by the sweeping clause.

In the present case, however, the general words, giving them a reasonable construction, are not inconsistent with the particular description, which is perfectly clear and definite.

But it has been contended, that the soil and freehold in the public square may pass as appurtenant, or that it will be presumed to be part and parcel of the granted premises, and the opinion of Chancellor Kent, as expressed in his Commentaries, is relied on in support of this position. “The idea,” says Chancellor Kent, “of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be pre sumed ; it would require an express declaration to sustain such an inference.” 3 Kent, 349.

This may be substantially correct, especially if the description be loose ; but w'hen the lot conveyed is described by metes and bounds, and they clearly exclude the road, I apprehend it cannot be maintained that any part of the soil and freehold of the road will pass. If by the terms of the description the road is necessarily excluded, it is equivalent to an express declaration that no part of the road is intended to be conveyed ; and it is perfectly clear that the fee in the road cannot pass as appurtenant to the land adjoining. Much, therefore, as we respect the opinion of Chancellor Kent, we cannot agree with him when he adds, that if land is conveyed bounded by a highway, the soil and freehold to the centre of the highway will pass. The law here, and in England, and in New York •and other states, is clearly settled, I apprehend, to the contrary. I am therefore inclined to think, that this remark was intended to be qualified by the previous observations as to presumptions in doubtful descriptions. If not so qualified, the remark is certainly opposed to the current of the authorities. The only case referred to by Chancellor Kent, is the case of Peck v. Smith, 1 Connect. R. 103. In that case some novel principles are advanced, which I shall not stop to discuss. The case was decided by a bare majority, and among the judges who decided it there was a great diversity of opinion as to the grounds of the decision. Some of them held that the public had a fee in every public highway, and that the abutters had a defeasible freehold estate in it. Others were of opinion that the abutters had the fee, the public having omy an easement. No general principle, therefore, as to this point, appears to have been established by that case and the obiter dicta of the judges, conflicting as they are with each other, cannot be considered of much weight; and besides, we consider the law to be well settled in Massachusetts, however doubtful it may be thought to be in Connecticut. It is a well established principle here, that the public does not acquire the fee in the land, by the location of a public way over it, but an easement only. Perley v. Chandler, 6 Mass. R. 454 ; Fairfield v. Williams, 4 Mass. R. 427 ; Tippets v. Walker, ibid. 595; Adams v. Emerson, 6 Pick. 57. And to the same effect are all the English and New York authorities. Goodtitle v. Alker, 1 Burr. 143 ; Com. Big. Chimin, A 2 ; Jackson v. Hathaway, 15 Johns. R. 452.

It is equally well settled, that land cannot pass as appurtenant to land, though a right of way may ; and it follows conclusively, we think, that no part of the demanded premises passed by the conveyance from Tyler to the tenant.

The case therefore depends on the validity of the demand-ants’ title. They rely on an ancient title derived from the town, made in the year 1648, and they set up another title commencing by disseisin. As to the ancient title, it is difficult to ascertain with certainty the extent. and limits of the land granted by the town. I am however inclined to the opinion, that the weight of the evidence as to this part of the case is against the demandants.

But it is not necessary to decide this point, because we are all of opinion that the verdict may be well sustained on the title by disseisin, unless indeed it has been lost or barred by a new disseisin on the part of the town. There is sufficient evidence to warrant the jury in believing that the town had been disseised before the conveyance from Dyer to Tyler in the year 1726, unless the relation between the town and Dyer and those under whom he claimed was such as to disable him or them to set up any title by disseisin. That the wharf had been extended before the conveyance, beyond the limits of the land granted in 1648, if the tenant’s argument is well founded as to the extent of that grant, is apparent from the language of the deed ; for the tenant’s counsel contend, that the land sold with warranty was the whole of the land granted and demised by the town ; and it is a strong circumstance in favor of this position, that the wharf is sold without warranty ; which is a circumstance difficult to explain, if the house and wharf were held by the same title. Another circumstance is, that the quitrent is payable for the house-lot only. If then the wharf was beyond the limits of the lease and grant from the town, the erection of the wharf by Dyer would have been a disseisin of the town, unless it can be maintained that a lessee having a right of way or other easement over the land of the lessor, cannot disseise the lessor. It is quite clear that a lessee cannot, during the continuance of the term, disseise the lessor of the land demised, but the reason is, not because he cannot dispute the lessor’s title, but because by the lease he is entitled to exclusive possession, so that he can do no act which can by possibility amount to a disseisin. The'case is quite different when he has only an easement in land adjoining the land demised ; for having only an easement, if he usurps the dominion over the whole estate and retains the exclusive possession of it against the will of the owner, this is a wrongful act amounting to a disseisin. So a joint tenant or tenant in common, although he has a lawful right to the possession of the land in common, yet if he ousts his co-tenant, it is a disseisin. Suppose a lot of land is leased with a right of way over an adjoining lot, and the lessee, instead of using the way, erects a building on it and occupies it for twenty years with the knowledge of the lessor ; can it be doubted that the lessor would lose his right of entry ? We think it is exceedingly clear, that upon the well established principles of the law of disseisin, such must be the legal effect.

The evidence therefore is sufficient to show a disseisin by Dyer, and his right passed by his deed to William Tyler; ■ and the instruction to the jury on this point was correct.

An objection has been made to the admission of this deed as evidence, which is acknowledged to be new, and which is very clearly without any foundation to support it. A deed duly executed, acknowledged and recorded, is always admissible evidence to prove a grant, whether the grant is a valid grant or not. Its operation is not to be examined before it is introduced, and therefore, if the tenant claimed under Dyer by a subsequent grant, it would be no objection to the introduction of the prior grant in evidence. It would not avail, it is true, if the subsequent deed was first recorded and the grantee had no knowledge, actual or constructive, of the former grant. But the tenant does not claim under Dyer, and it is exceedingly clear that this objection cannot prevail. The evidence of the exclusive possession of the Tylers from 1726 to 1783, when the dock was filled, and indeed several years later, is as full and as satisfactory as could be expected to be produced, after such a lapse of time. Pierce goes back in his recollec-. tion, as early as 1757, when the wharf was in the possession of William Tyler, extending then so far out as to include the land described in the verdict. This wharf was occupied as all other wharves were, and there is sufficient evidence to show that wharfage and dockage were paid to the Tylers. It was also proved, that Royal Tyler, the demandants’ grandfather, repaired the wharf, gravelling it at times, and at one time supplying a new capsill ; so that the uninterrupted possession of the Tyler family for the whole time from 1726 to 1783, seems to have been satisfactorily proved, and there is no proof of claim to this part of the demanded premises on the part of tire town, during the whole period. Now it is clear, I think, that the demandants went much further than was necessary to establish their title by disseisin. It would have been sufficient to have begun with the possession of William Tyler in 1757. Pierce testifies that Tyler was then in possession; and he and his descendants certainly continued in possession, without any interruption or claim hv the town, until 1783. The town then had lost their right of entry, and could not by an actual entry become re-seised of their former estate.

But it is objected, that Dyer, holding under the lease to Bendall, could not disseise the town during the continuance of the lease, and that Tyler, claiming under the grant from Dyer, labored under the same disability. This disability however was removed in 1726, when the lease expired, and cannot be material. From that time until 1783, Tyler and his descendants continued in the open undisputed possession of the premises, claiming title, and such a possession certainly amounted to a disseisin.

Then it was contended, that by the introduction of the quitrent in the deed from Dyer to Tyler, and by the payment of rent in 1774, he and bis heirs were estopped to deny the title of the town. This might be so if the w'harf had been included in the lot charged with the quitrent; but it was not; the house-lot alone was thus charged, and this objection also fails. It is not strengthened by the consideration, that the town had no knowledge of the deed from Dyer to Tyler. They had a right to demand an exhibition of his title ; their ignorance therefore, being the consequence of their own omission, cannot affect the demandants’ legal rights. To constitute a disseisin, it is not necessary that the owner should have actual knowledge of the disseisin ; if the possession of the disseisor is open and adverse, and the owner has the means of knowing the fact, it is sufficient. But the town must have known that the quitrent was not paid on account of the demanded premises, for it was charged on the land granted ; which, according to their construction of the grant, included no part of the land now demanded.

The next question to be considered is, whether the tenant, on his part, can establish a title by disseisin. It is said that the entry of the town in 1783 or 1784, and filling up the dock, amounted to a disseisin of Tyler ; and we are of opinion that it did, if Tyler was then seised of the dock. Whether he was so seised or not, is immaterial, because if he were, the disseisin was only of the part filled up. The town claimed no more at that time ] and it appears by the votes of the town from 1757 to 1783, that there was no dispute with the abutters on the dock as to their title to their wharves, but the abutters claimed title to the dock ; and the committee appointed by the town to examine this claim, thus conclude their report : — “ Upon the whole, the committee having considered the long uninterrupted possession of the abutters and their predecessors, and having looked into a large number of deeds and town records, are of opinion, that the town has but little more than a right in common to that part of the dock meant to be filled up, and that it is most convenient, in the choice of difficulties, to make some composition with the abutters and to make them some offer for a release of their right.”

So in the votes and proceedings of the town, the proprietors of the wharves are described as abutters on the dock, and their titles are not questioned, but impliedly admitted ; and although the use of the wharves was thereby destroyed, that might authorize the owners to maintain an action to recover damages for the injury, but it did not amount to a disseisin.

The subsequent 'proceedings of the selectmen, such as paving the square, were equivocal acts, which were properly submitted to the jury to determine with what intention they were done ; and they decided, we think, correctly. There was no evidence that the selectmen were authorized to assert the right of the town to the wharves; but as they were used as a public square or passage way, together with the dock when filled up, the selectmen were authorized to pave the whole for the public accommodation, and the act itself indicates the intent. The use of a way is not such exclusive possession as can amount to disseisin.

The last objection to the demandants’ claim involves the construction of the deed from John S. Tyler to Royal Tyler. This is not very important, for if well founded, it would only give rise to another action. We think, however, that the objection is not well founded, and that there is a plain distinction between this deed, and the deed from R. Tyler to Seollay. In the deed to Scollay there is a particular description of the land intended to be conveyed ; whereas, in the deed from Tyler to Tyler, the words of description are general. The mansion-house and appurtenances are conveyed, however they may be bounded, or any part thereof, or which at any time had been held and occupied or enjoyed as part or parcel of the same.

March 31st, 1831.

The case was afterwards referred by consent of parties, to assessors, to ascertain the betterments on the land described in the verdict, and the value of the land without the present buildings thereon ; and it was agreed that judgment should be rendered upon their report in the same manner as if the value of the land and of the improvements had been found by the verdict of the jury.

The assessors reported, that the value of the betterments was $.2400 ; that the value of the land at the time of the verdict without any betterments, and considering it to be open southerly on a way or street, or to have a right of passage from the southern boundary thereof to North Market street was $ 3600 ; that considering it not to be so open nor to have such right of passage, the value was $2500 ; and that considering it to be subject to the easements of light, air and passage or way under the deed of Royal Tyler to Scollay, or any other title to such easements, the value was $ 1000. They further reported, that the demandants’ counsel denied their right to inquire into any easements or incumbrances to which the land was liable, and to estimate the value of the land as being subject to such incumbrances ; and also denied their right to estimate the value of the land as not being open southerly on any way or street, or as having no right of passage or way from the southern boundary of the land to North Market street.

Curtis and C. G. Loring cited to the point that the easements belonging to the tenant as owner of the land formerly belonging to Scollay, were not extinguished, 3 Cruise’s Dig. 116, 129 ; Vin. Abr. Extinguishment, C; James v. Morey, 2 Cowen, 246 ; Gibson v. Crehore, 3 Pick. 475 ; Alden v Murdock, 13 Mass. R. 256 ; Winter v. Brockwell, 8 East, 308 : — That the demandants had acquired no right of way to North Market street, Commonwealth v. Newbury, 2 Pick. 51, 60, note; Emerson v. Wiley, 7 Pick. 68; Commonwealth v. Low, 3 Pick. 408.

April 2d.

Sullivan and S. Hubbard insisted that there were only two questions properly before the assessors ; one, what was the value of the land without the improvements ; the other, what was the value of the improvements. St. 1807, c. 75, § 3. The tenant pleaded that the demandants had no title to the land ; and he cannot claim easements, in the same action. He might have pleaded a special non-tenure. Alden v. Murdock, 13 Mass. R. 256.

Further, the easements have been extinguished by unity of possession, and by the erection of the buildings by the tenant. Clap v. M'Neil, 4 Mass. R. 589.

The demandants are entitled to a way from the southward boundary of the land recovered, to North Market street.

Wilde J.

delivered the opinion of the Court. No question has been made as to the value of the buildings and improvements, but the parties disagree as to the value of the premises. Three estimates have been reported by the assessors ; and it is submitted to the Court to determine which of these is most conformable to the legal rights of the parties. It is clear, that the land recovered must be estimated with all its privileges and appurtenances, and subject also to all existing incumbrances. It is admitted that the tenant, as owner of the mansion-house estate, had a right of passage over the premises, and that it still exists, unless it has been forfeited or extinguished ; so that the main question is, whether any thing appears which in law amounts to a forfeiture or extinguishment of this easement. It has been argued, that by the purchase of the tenant from the town, his right of passage merged in the fee ; and such would have been the legal effect, if both rights had been derived from the same title. But the tenant had the fee and the easement by different titles, the one legal and the other defective ; there was, therefore, .no merger. Nor can the tortious entry of the tenant under a defective title, claiming the fee, work a forfeiture of his legal rights, nor is he estopped to assert these rights by his having set up this defective title ™ defence. He had the right to try the validity of that title, without prejudice to his other claims.

It has, however, been objected, that if the tenant’s right of passage did not merge in the fee, it was destroyed by his own act in erecting his buildings. This is true, but it does not affect the principles by which the value of the premises is to be estimated. This estimate was to be made without regard to the buildings and improvements. The assessors were directed to inquire and ascertain what would have been the value of the estate recovered, if no buildings and improvements had been made by the tenant. And this is conformable to the language of the statute.

The demandants set up a claim to a right of passage from the premises to North Market street, as appurtenant to the land recovered, but nothing appeared at the trial which can sustain this claim. The demandants’ title commenced by disseisin and they could not claim a right of way by necessity, and no user was proved sufficient to establish a right. If there was ever a right of passage to the extent claimed, it was appurtenant to the mansion-house estate.

The result is, that the last and lowest estimate reported by the assessors is to be considered as fixing the value of the premises recovered ; and judgment is to be made up in conformity to that estimate. 
      
       See Anon. Lofft, 398.
     
      
       See Barnard v. Martin, 5 N Hamp.R. 536; Magoun v. Lapkam, 21 Pick. 135; Allen v. Allen, 2 Shepl. 387; Whiting v. Dewey, 15 Pick. 434; Smith v. Strong, 14 Pick. 128; Stearns v. Rice, 14 Pick. 411; Chaplin v. Srodes 9 7 Watts, 410; Howell v. Saule, 5 Mason, 410; Meyrick v. Meyrick, 2 Crompl. & Jervis, 223; Smith v. Galloway, 5 B. & Adol. 43.
     
      
       See Chatham, v. Brainerd, 11 Connect. R. 82; Champlin v. Pendleton, 13 Connect. R. 23.
     
      
       See O'Linda v. Lothrop, 21 Pick. 292; Buckman v Buckman, 3 Fairf. 463; Thorndike v. Richards, 1 Shepl. 430; Keith v. Reynolds, 3 Greenl. 393 ; Johnson v. Anderson, 6 Shepl. 76.
     
      
       See Sachet v. Wheaton, 17 Pick. 103. So a mortgagee cannot be disseised by the mortgager. Hunt v. Hunt, 14 Pick. 374.
     
      
       The registry of a deed is constructive notice only to after-purchaser* under the same grantor. Bates v. Norcross, 14 Pick. 224.
     
      
       See Bliss v. Rice, 17 Pick. 36.
     