
    Smith, ex dem. Teller and others, against Burtis and Woodward.
    ALBANY,
    August, 1810,
    a descent, do as to toll an entry, must be a <iiswhich the rigb/ful owner has been expelled by wIiícÍl * g^^vájent in its effects.
    A mere entry upon the land of another is no disseisin; and pin»6ejectment bySdeScent 2 |‘®. and expulsion of (lie true owner; or that the en-<5ngeable
    
    THIS was an action of ejectment, brought to recover the possession of a house and lot of land, in the city of 1 , , Nexv-York. The cause was tried at the Sittings, held in the city of New-York, the 12th of June, 1809, before Mr. _ . Justice ópencer.
    
    The plaintiff proved, that Isaac Teller entered into possession of the premises in question, about the year 1T6S, and erected a house thereon, in which he lived, 1 with his family, from 1765 to 1775, when he died in pos- • . , . . session. At the time of his death, he left five children, John, his eldest son, and heir at law, Henry, his second son, one of the lessors, Mary (who intermarried with Peter Thalkimer) Remsen, and Isaac, other lessors of the plaintiff. The widow and children remained on the premises until the British army took possession of Nexv-York, when they left thep lace and went to Hudson. John, the eldest son, died in 1777, aged about 14 years : and Henry was about 8 years old when his father died. After the British troops entered the city of New-York, (in 1776,) they took possession of, and occupied the buildings and premises, and on application of one of the creditors of Isaac Teller, permitted him, for thirty guineas, to take possession of, and appropriate to his own use, the materials of the buildings, which were sold by him; out of the proceeds thereof he retained the amount due to him ; and, a few years since, paid the residue to Henry, one of the lessors. The possession of the premises remained vacant during the war, and until 1795, when they were taken possession of by the defendants, or the persons under whom they claim.
    The defendants offered to prove, that Isaac Teller, under whom the lessors claimed, had no title to the premises in question; and that the defendants.had a good and complete title to the premises, which was not derived from Isaac Teller, or his children.
    . . This evidence was objected to, by the plaintiff’s counsel, on the ground that there having been a descent cast upon the immediate heirs of Isaac Teller, who- died in possession; and that the possessory title being the only question in an action of ejectment, the plaintiff must recover.
    The judge overruled the evidence offered by the defendants ; and a verdict was thereupon found fór the plaintiff. . '
    A motion was made to set aside the verdict, for the misdirection of the -judge, in overruling the evidence offered by the defendant, on the ground of a descent being east; and also, on account of newly discovered evidence.
    Affidavits were read, stating the evidence discovered since the trial; but as the opinion of the court related only to the other ground, it is unnecessary to state it.
    
      JD. B. Ogden, for the defendants.
    The first question is, what is such a possession of the ancestor, as will make a descent cast, so as to toll the right of entry. Littleton
      
       says, “ descents in fee which toll entries are ; as if a manseised of certain lands or tenements is by another disseised, and the disseisor hath issue and dieth of such estate seised; now the lands descend to the issue of the disseisor, by course of law, as heir to him,” &c. Littleton is-speaking of what descents will toll entries, and the only case he puts, is that of a disseisor dying in possession. Coke, in his Commentary, says, “ the law is the same of an abatement or intrusion,\ and of their feoffees, or donees,” &c= - The case of Matheson v. Trot,
      
       is full to the point, and supports the principles laid down in the books on this subject. The whole doctrine is more concisely stated by Gilbert, in his Law of Tenures. "When a descent is cast, the heir of the disseisor has ju8 possesrioni~, because the disseisee cannot enter upon his possession.aud evict him, but is put to his real actioji, because the freehold is cast upon the hôir." And the reason why the freehold is cast Trnon th~ h~r ~s th~it there maybe a ~nerson to dis- * 1 charge the feudal duties, a tenant to the pra?cipe, and to answer to the actions of persons. Blackstone says, "descents which take away entries, are when any one seised, by any means whatsoever, of the inheritance of a corporeal hereditament, dies, whereby the same descends to his heir ;" but the authorities referred to by him, are Littletoiz, Goke and Gilbert, all of whom speak only of the cases of disseisin, abatement and intrusion.
    Again, it is necessary that the ancestor should be seised of an estate in fee-simple, or fee-tail; and this seisin can be ' . gamed m three ways only; by feoffment, grant, or disseisin. Teller, the lessor, does not pretend, that his ancestor was in by right; nor was he an abator or intruder. Was he, then, a di~sei~or L~ That he was not a disseisor, is evident from the very definition of a disse ,z. I mean an actual disseisin, as distinguished from a sin by election, which depends on the disseisee, and not on the disseisor. Littleton says, that " disseisin is iy where a man entereth into any lands or tenements where his entry is not congeable, and ousteth him who hath the freehold," &c. "Disseisin," says Coke,  "is S Litt. man out of seisin, and ever implieth wrong f and implies force.%
      
       Disseisins, abatements, and such ™('0’ 25^’ gained by wrong, are not said in law to be pur- chases. It?”Litt. b.
    In thcase of Taylor, ex deni. Atkyns, v. Horde and others,
      
       Lord Mansf eld said, “ disseisin was a complica- ** 1 and differed from dispossessing. The freeholder by disseisin, differed from a possessor by wrong.” And,  t precise definition of what constituted a dis- flf 1 made the disseisor a tenant to the demand- the demandánt’s prcecipe, &c. was once well understood; but it is not now to be found. The more we read, unless we are very-careful to distinguish, the more we shall be confounded.” I cite this’ observation to show how careful the court ought to be, not to allow a person to gain a title, by means of this obscure and antiquated doctriné of a descent cast.
    “ A bare entry on another,” says Lord Holt, “ without an expulsion, makes such a seisin only that the law will adjudge him in possession that has the right; but it will not work a disseisin or abatement, without actual expulsionR
       In the case of Jackson, ex dem. Van Alen, v. Rogers,
       the present chief justice, laid it down that “ to constitute an actual disseisin, or one in fact, there must be a tortious entry, and an expulsion.”
    The lessors claim to hold the verdict, solely on the ground of a descent cast, which tolls the entry. They ought, therefore, to make out this fact fully, clearly and satisfactorily. Do they show that the entry was not congeahle P Again, to every disseisin there must be a diss.eisee, as well as a disseisor. But who was the disseisee in this case ? There is no evidence of any person having been ousted, or turned out of the possession. Though I do not mean to say, that this ancient doctrine of disseisin cannot be applicable in this state, about which there are different opinions; yet I venture to assert, that it cannot be applicable to the case of a vacant possession. To permit its application to vacant lands, in this country, would be productive of infinite mischiefs, and the greatest injustice.
    Now, Isaac Teller entered on a vacant possession. It is not stated, or pretended, that any person was in possession when he entered.
    Again, if the lessors meant to rest their claim on this possession, so acquired, they were bound to show a continued possession of the ancestor. They must keep a constant possession or a continual claim ; but it is a fact stated in the case, that the premises remained vacant during the war, from 1776 until 1795, when the defendants entered. A fight acquired by possession may be lost by ah abandonment of that possession. But rejecting the period of the war, the premises were vacant from 1783 to 1795, when the lawful owners of the finding it vacant, entered and took possession. It is a general principle, that where a person comes into possession lawfully, he shall be considered as in possession according to his title. The lessors, claiming by disseisin, admit they claim by wrong, and not by right or title. The entry of the defendant wás clearly lawful; for the lessors had not been heard of since 1777, and no one was in possession against whom an action of ejectment could be brought.
    
      Disseisin is very different from an adverse possession, which is under an adversé title. A disseisee is in under no title. An adverse possession, to give a title, must be for twenty years. But a disseisin, find a descent cast, after a year and a day, tolls the entry.
    There is another point of view in which this cáse may be considered, and which appears to me to be conclusive. The lessors, as they must recover on the strength of their own title, are bound to prove the exact time of the disseisor’s dying seised, otherwise, it must be taken, that he died during the war, as hostilities had commenced in 1775. A descent cast in time of war, gives no right . „ possession, though the disseisin was m time oi peace. “ When the courts be open, and the judges and minisiers of the same,” says Coke
      
       “ may by law protect men from wrong and violence, and distribute justice to all, it is said to be a time of peace. So when by invasion, insurrection, rebellion, and such like, the peaceable course of justice is disturbed arid stopped, so that the courts .of justice be, as it were, shut up, et silent leges enter arma, then it is said to be time of war.” And, “ if a man be disseised in time of peace, this shall not take away the entry of the disseisee.” Whether the courts of justice are shut up or not, is a question of law, and to be tried by the record. And we have the opinion of the legislature, on this point, in the statute of limitations, by which it is declared, that no part of the time, from the 14th of October, 1775, to the 21st of March, 1783, shall be deemed as part of the time for making any title, prescription, cognisance or claim, or bringing any action or suit. During that period, therefore, we must consider the courts of justice as shut. It was incumbent on the lessors to have proved, that Isaac Teller died before the 14th of October, 1775. It was a material fact to support a descent cast, so as to toll the entry. The descent must operate immediately, or not at all; and the right of entry, in 1783, or 1795, by the defendants, was not taken away.
    Again, the evidence of title offered on the part of the defendants, ought not to have been rejected, as it might have been very material, even admitting the doctrine of a descent cast. Thus, where a person makes a devise in fee to another, and dies,- and the heir enters, before any entry of the devisee, and dies seised, this will not take away the entry of the devisee. Now, non constat, but that the defendants could have shown such a devise. So a descent does not take away the entry of a tenant for years.
    
    Again, suppose the defendants claimed under letters patent from the king, the right of entry could not be tolled.
    This is sufficient to show that the evidence offered by the defendants might have been material, and ought to have been received.
    
      Hoffman, contra.
    Wherever a man is seised, in any manner whatever, and dies seised, a descent is cast which tolls the. entry. A seisin in fact of the freehold, and a descent cast transfer the right of possession. This is the principle to be found in all the books, on this subject. The case of Matheson v. Trot, is the one principally relied on by the plaintiff’s counsel. Henry, in that case, who made the lease to I. S. had never entered, so as to be seised. Henry died, and rent was paid to his heir ; Edward, the devisee, afterwards entered; and the question was, whether his entry had not been tolled by a descent cast; but the court held there was no descent cast; for the paying of rent to Henry, or his casually walking over the ground, without any special claim, did not make him a disseisor, nor an abator. Henry was never, in fact, seised, so that there could be no descent. But had he entered claiming title, and been seised, in fact, the court would have undoubtedly held, that there was a descent cast.
    A seisin in fact, and a descent -cast, are suficient. to toll the entry.' Whether the seisin be with right or against right, makes no difference; for every seisin, by presumption of law, is of right. It is said there must be an ouster of the freehold. But ouster and ex-, pulsion from the freehold, and the possession is the same. Ouster does not necessarily imply an actual turning out of the possession, by force and violence. There will be a disseisin, when the possession is acquired by fraud, in the absence of the owner or tenant, and" keeping him out of the possession. In the case of Jackson, ex dem. Van Alen, v. Rogers, which has been cited, the chief justice says, “ whenever an act is done, which of itself works an actual disseisin, it is still taken to be an actual disseisin, as if a tenant for years, or at will, should enfeoff in fee.” Now, in such a case, there is no actual or forcible expulsion. A tortious entry, or expulsion, means only a legal expulsion. In Doe, ex dem. Fisher and another, v. Prosser, Lord Mansfield says, “ some ambiguity seems to have arisen from the term actual ouster, as if it meant some act accompanied by real force; £pd as if a turning out by the shoulders was necessary. But that is not so. A man may come in by rightful , , , ' , . . , ° , possession, and yet hold over adversely without a title. If he does, sucl holding over, under circumstances, will be equivalent to, an actual oyster.” This' language was adopted by this court, in the case of Van Dyke v. Van Buren and Vosburgh;
       and it was held, that an actual ouster or not, was a question of law, and it might be presumed; as from the perception of the pent and profits. Gilbert
       says, if one coparcener enters into the whole it is only in preservation of the estate of the other; but if she disseiseth the other, after her entry, there she gets, a possession distinct from her sister, and the descent will take away the entry.” An ouster or a disseisin may be with, or without force. Every adverse possession of a freehold is an actual ouster. Every adverse possession of property is, in law, a dispossession; and, for the same reason, every adverse seisin is a disseisin. If a lessee holds over, his landlord is dispossessed. A person in possession using the land, as his freehold, and taking the rents and profits, is seised.
    It is said' that the lessors have not shown that their entry was not congeable ; but being possessed as of a freehold, they were not bound to prove the negative. The defendants must show {he entry to be congeable. If there was a seisin in fee, and the defendants mean to disprove such seisin, they must show that the entry was by permission, as lessee,, or bailiff to them. In the case of Jackson, ex dem. Van Alen, v. Rogers, the defendant showed, that the lessor entered as a tenant at will, or by sufferance. And in Taylor, ex dem. Atkyns, v. Horde and others, the manner of the entry .was shown by the defendant.
    Again, it was' asked, who is the disseisee ? If the lessors are seised of the freehold, without right, they must be the disseisors. The defendants offered to show that the persons under whom they claim, had a title. Then they must be disseisees. The fact of seisin, by wrong implies a disseisin ; and that is sufficient for our purpose. Blackstone defines very accurately the words ouster, dispossession, disseisin, Ssfc; “ Disseisin must be by entry and actual dispossession of the freehold; as if a man enters by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of possession.” Was, then, Isaac Teller seised ? It is immaterial whether he entered into a vacant possession or not. If he, afterwards, kept out the true owner, it amounts in law to an ouster, or disseisin. But there is no evidence that the premises were vacant; and the court are not to infer that fact.
    2» It is said that the evidence offered by the defendants ought not to have been overruled, as it was material to show that there had been no disseisin. The defendants could not show a patent, because, the premises are in the city of New-Tork, and all unappropriated lands are, by charter, vested in the corporation.
    It is not easy to say what was the state of the country In 1775. If we look at the result of the difference between us and Great Britain, it was a public war. But, in fact, the courts of justice were open in all parts of the state not in the actual possession of the British. The burden of proof, to show that no descent was cast prior to the 14th of October, 1775, lies on the defendants, who claim the benefit of the exception. But the rights of the heir, by the statute, were preserved, though suspended during the war, and he became reseised in 1783, so that the descent was then cast.
    
      T. A. Emmet, on same side. The lessors, prima fade, have a rightful estate of inheritance in fee. The defendants offered to show that Isaac Teller had no title. Granting that to be the fact, then he was a disseisor, and a descent was cast, which tolls the entry of the defendants j so that whether the possession of Isaac Teller was rightfül or wrongful, the lessors must prevail. ' As' there was prima facie evidence of title, on the part of the lessors, it was incumbent on the defendants to show.that Isaac Teller was not a disseisor, or that the entry was congeable, or a disseisin' by election. Rut what is a disseisin f In the case of Taylor, ex dem. Alkyns, v. Horde,
      
       Lord Mansfield says, “ seisin is a technical term to denote the completion of that investiture, by which the tenant was admitted into the tenure; and without which no freehold could be constituted or pass.” “ Disseisin, therefore^ must mean some way or other turning the tenant out of his tenure, and usurping his -place and feudal relation.”
    “ Disseisin was a complicated fact, and differed from dispossessing. The freeholder by disseisin differed from a possessor by wrong.” Bracton (fol. 160.) puts many cases of possession wrongfully taken, which he, calls intrusion, because there is no disseisin. “• Possessiars quce nuda est omninb,et sine aliquo vestimenta, quce dicitur intrusioP Vestimento is seisin,- investiture. With submission to the high authority of so great a name, I think I can show that some of his- lordship’s- observations -are erroneous. His opinion appears to be founded partly, on the probability of the doctrine being derived from the' ancient feudal law, and partly from what he supposes to be the authority of Bracton.
    
    
      Seisin is possession;
      
       it is .exactly possession, and nothing more, Bracton speaks of a seisin of a, term, for years. That there might have been a time when seisin meant- something more, is not denied, but we have no trace of it in the books; nor was investiture required within any period of our law of which we have any records, We must take up the doctrine at the time when a right of entry existed; when the possession passed: by a feoffment with livery of seisin, that is, a delivery of possession. .
    
      Coke,
      
       in his definition of disseisin, distinguishes it - from a dispossession. Disseisin always implies wrong $ but dispossession may be by right or wrong. And he cites Bracton, 216. b. “ Omnis disseisina est transgressio, sed non omnis transgressio est disseisina. Si eo animo forte ingrediatur fundum alienum non quod sibi usurpet tenementum vel jura, non facit disseisinam sed transgressionem, Sic. §>uerendum est a judice quo animo hoc feceritf &c. And, in ancient times, a disseisin was defined a personal trespass of tortious ouster of seisin.
    
    
      ■ A disseisor is a dispossessor by wrong, claiming a fee, or a title which is equivalent to a fee; for every tortious estate is quasi a fee.
    
      Bracton, for an explanation of his meaning, in the passages cited by Lord Mansfield, refers to the title de acquirendo possessionem (lib. 3. c. 17. p. 38. b. 39. a.) where he says il Item (possessionuin) alia nuda, alia vestila. Nuda ubi quis nil juris habet in re, nec aliqua juris scintillam sed tantum nudam pedis possessionem : vestita, jure, titulo vel tempore.'1'' Here is no idea of feudal investiture, to distinguish a naked and a clothed possession. But the latter is a possession with right, and the former, a possession without right. What Bracton (lib. 4. c. 1. 3.) says, is this: 11 Et sciendum quod possessionum queedam nuda pedum positio quce dicitur intrusio et dicitur nuda eo quod non vallatur aliquo vestimenta, .et minimum habet possessionis et omnino nihil juris, et in parte habet naturam cum disseisina, et in quibusdam sunt dissimiles, quia ubicunque est disseisina, ibi quodammodo estintrusio, quantum ad disseisitorem, sed non é contrario, quia ubicunque est intrusio, ibi non est disséisina, propter, vacuam possessionem, et in utroque casu possessio est nuda, donee ex tempore et seisina pacifica acquiratur vest ini enturar'1 Andhe defines intrusion, (lib. 4. c. 2.) ubi quis (cui nullum jus compelit in re nec scintilla juris) possessionem vacuam ingreditur quce nec cor pore nec animo possidetur, sicut hereditatem jacen» fem antequqm adita fuerit ab hatreds, vel saltern a domino capitali ratione custodies, vel ratione eschetae, si forte heredes non existantf
    
    
      
      Britton(c. 32. fol. 80. b.) says, “so is it of a man wrongfully ejected, and disturbed of the peaceable possession of his freehold ; and this violence is called disseisin and fresh force.” Disseisin cannot be made, except of a freehold. No one can be a disseisor, if some one be not seised. (Britton, c. 42. fol. 106. b.) He is properly disseised, who is wrongfully ejected from any tenement, which he shall have peaceably held, and in whom are joined the right of the property in fee, and the right of the possession of the freehold, and the seisin. “ Fit autem disseisinaf says Bracton, “ non solum, cum quis presens, vel procurator, veljamilia qui nomine suo juent in seisina, violent er, injuste, et sine judicio, de libero tenemento suo qualicunque, ejectifuerint; verum etiamfit disseisina, cum quis ad nundinas, vel perege profectus fuerit nemine indomo relicto vel possessione, alius in possessionem ingrediatur et ipsum reversum non admittat, vel cum ingredi voluerit, per se, vel assumptis viribus violenter rcpellatF “ Item -non solum ft disseisina secundum quod predictum est, sed etiam si quis. prapotens 'uti voluerit in alterius tenemento contra ipsius tenentis voluntatem, arando, fodiendo, falcando, et asportando, contendendo tenementum esse suum quod est alterius, si autem nihil clamaverit in tenemento, aliud erit; quia tunc erit transgressio et non disseisina de lihero tenemento F\ 
      
    
    
      Bradon .treats largely of disseisins, and mentions all the cases in which it happens; but says not a word of investiture. It is a continued trespass, with a claim of title. Fleta
      
       adopts the language and distinctions of Bracton. Glanville
      
       does not define disseisin; but he gives the form of the writ of novel disseisin, in several cases, (besides the general writ,) which show, that obstructing the enjoyment of the freehold, by the exertion of an adverse claim, is a disseisin; as for raising or destroying a ditch, or for raising the dam of a mill, tó the injury of the plaintiff’s freehold. Littleton says, that
    
      disseisin is properly where a man entereth into any lands or tenements, where his entry is not congeable, and ousteth him that hath the freehold, &c. Coke,
      
       in his Commentary, observes, “ that every entry is no disseisin, tin-less there be an ouster of the freehold. And, therefore, Littleton doth not set down an entry only, but an ouster also, as an entry and a claimer, or taking of profits,” fife. In the case of Blunden v. Baugh, disseisin is defined as in Bracton, “ where one enters intending to usurp the possession, and to oust another of his freehold.” Lord Mansfield, seems to intimate, that every disseisin we know of is a disseisin by election; all knowledge of actual disseisin being lost.” “ The reports of assise,” he says, “ can only relate to cases where the owner admits himself disseised.” But the disseisins treated of by Bracton, and the older writers, are not disseisins by election ; for it is universally admitted, that disseisins at election grew out of the extension of the assise of novel disseisin; and the first statute which extended that remedy, was that of Westm. 2. c. 25. 13 Edw. I. and Bracton wrote in the preceding reign of Henry III. Little-•in -.ill J ton agrees with Bracton ; and had they treated of disseisin by election, they would have marked the distinction; for they speak of disseisins which cast a descent, so as to toll entry, which is not the case, where the disseisin was at election.
    Again, Lord Mansfield says, “ except the special case of a fine with proclamations, there is not a case, where the true owner, whose entry is not taken away, may not elect (by pursuing a possessory remedy) to be deemed as not having been disseisedBut where there is a disseisin in fact, a party cannot elect whether he will be disseised. Before the reign of Edward II. when Bracton wrote, there could not be an election in such a case. Every injury that intrenched on the enjoyment of a man’s freehold, was considered as a disseisin, and became, of course, the subject of an assise. But in the reign of Edward IÍ* many of those cases were tried in actions of trespass, .as well as by assise, and the plea of soil and freehold was allowed.
    
    None of the definitions of disseisin, given by Bracton and the old writers, which have been cited, are coupled with the idea of feudal investiture; nor is it clear, though some writers give it that explanation, that the privileges of a descent cast, are entirely connected with feudal tenure ; for when the lands, before the Norman conquest, xyere allodial, they seemed to possess greater privileges. Lord Coke observes, “ the dying seised being an act of law, doth hold.to this day, and this'seemeth to be' very ancient, for this was ' the law before the conquest.” And he cites Lambard.
      
       Porro autem quam maritus sine lite et controversia sedem, incaluerit, earn conjux et proles sine controversia possidento, si qua in ilium lis, fuerit illata viventem, earn heredes ad se (j>errinde atque is vivas') accipiunto. It seems fanciful, then, to suppose, that any feudal ceremonies were requisite to give to the dying possessed of the ancestor (under claim of title) a privilege, which, before the introduction of the feudal law, resulted from mere inhabitancy, and which is mentioned by all the old writers, without any allusion to those ceremonies, as necessary to the disseisin on which it depends. But it is manifest, that simple tortious entry and possession, under claim of title, made a disseisin, on which a descent could be cast.
    
      Littléton,
      
       speaking of descents, says, “ if a man be seised of lands in fee, by occupation, in the time of war, and thereof dieth seised, in the time of war, and the tenements descend to his heir, such descent shall not oust any man of his entry.” Lord Coke
      
       in his Commentary, observes; “ Occupation is a word of art, .and signifieth, a putting out of a man’s freehold in time of war; and it is all one with a disseisin in time of peace, saving it is not so dangerous, as appeareth by Littleton, and therefore the law gave a writ in that case of pccupavit, so called, by reason of that word in the writ, instead of dis-. seisiviret, in the assise of novel disseisin, if the disseisin had been done in time of peace ; whereby it appeareth how aptly, both in this, and all other places, Littleton through his whole book speaketh.” “ But occupatio is applied to the possession, be it lawful or unlawful.” But it is said, on the authority of 1 Burrow, (p. 109.) there may be a wrongful possession in fee, which is no disseisin ; and it is asked, may not the possession of Isaac Teller have been of that kind ? No doubt there may be a wrongful possession which is not a disseisin; as in an abatement, and intrusion; but as far as Lord Mansfield's position is calculated to cast a doubt on the nature •of disseisin, (in which sense it is used by the defendants’ counsel,) it is erroneous, and not warranted by the cases which he has cited. The case' of Matheson v. Trot, when critically examined, will show that his lordship was mistaken. The same case is reported in Owen, (p. 141.)
    There is no wrongful possession in fee, which does not gain a tortious seisin, and in which the descent is not privileged. Every wrongful possession in fee, must be a disseisin, an abatement, or intrusion, if the entry was wrongful; and if the entry was rightful, it is a disconiinuance or deforcement. In the cases of disseisin, abatement, and intrusion, the descent tolls entry;,and in the other two cases, there is no right of entry at all.
    
    But, it is asked, have we shown that our descent is not congeable. It matters not whether our entry was or was not .conge able ; for if it was not conge able, we were defoncers or discontinues, and there is no right of entry at all against us; therefore, the entry of the defendants, or those under whom they claim, was unlawful. But, in fact, the oiFer of the defendants, at the trial, to prove no title, shows that the entry to not congeable, but tortious»
    
      Nor was it necessary for the plaintiff to show who was the disseisee. ' The defendants claim title under a patent to "Kip, and not under Isaac Teller, or his descendants; It must have been a subsisting title ; and the person so was, by the tortious enry of Isaac Teller, ousted of his freehold. There was a disseisin in fact. In this point of view, the question about a vacant possession is immaterial; for in the legal sense, it only changes' the tortious possession into abatement or intrusion.”
    
    The danger suggested, in regard to this doctrine of disseisin, as applied to the people, called “ squatters,” does not in reality exist; for they are not disseisors ; they do not claim title, or enter, with any intention to oust from the freehold. The description of Bracton
      
       is applicable to them; and tlie quo animo is to be regarded; for if they do not enter with a view to usurp the freehold, they are mere trespassers. It is in every man’s power to prevent those who settle on his land, without permission, vulgarly denominated squatters, from becoming disseisors ; and it must be through gross negligence, if it should be ever doubtful whether they were trespassers or disseisors. Vigilantibus, et non dormiiantibus ’jura subveniunt.
    
    Again, it is asked, may not h person abandon a right acquired by possession-? As if the right of the lessors had been lost by an abandonment of the possession. But their title does not rest on a mere possession, but on a descent, which Lord Coke
      
       says, “is the worthiest means of coming to lands,” &c.
    Again, it is said, the descént may, for aught that appears, have been cast in timé of war, which would hot toll the entry. This objection was not madé, at the trial, when any doubt, as to the time óf Isaac Teller’s deáth, might have been removed." But whether it was time of war or not, so as to prevent the entry being tolled, is to be tested by the fact, whether the courts of justice were open or not; and this fact is to be tried by the records of the court. Now, by searching the records of the court, I find, that on Saturday, the 27th of April, 1776, the last court was held under the crown; and the first court held' under the present constitution of the state, was on Tuesday, the 9th of September, 1777, at Kingston. . So; that the only time in which th,e court was shut, so as to prevent an entry being tolled, was between those two periods.
    Again, it is said, that the evidence offered would have been material to show a devise, or condition, or a patent; but this supposition is inadmissible with the offer to show that the lessors had no title; and the lands had been patented for above 100 years.
    
      f. Radclijf! in reply.
    There is no evidence whatever, in this case, of any possession prior to the time when Isaac Teller is said to have entered, which was about the year 1765. It is the case, then, of a person entering on a vacant possession, without title, and building ui a disseisin, and a descent cast to toll entry. There is no reason or authority to maintain, that a mere naked possession, thus taken, should ever amount to more than a mere prima facie evidence of title. But in the case of Reed v. Carpenter, formerly decided in this court, it was held, that such a possession was not even prima facie evidence of title; though the court, afterwards, said, that .such a possession, accompanied by a conveyance, would be prima facie evidence of title.
    I cannot perceive any difference between this case, and that of a common “ squatterIt seems to be taken for granted, that there was an antecedent possession, but neither the facts in the case, nor the state of the country, will warrant such a presumption.
    I shall not follow the learned counsel, on the part of the plaintiff, through their elaborate and critical examination of the ancient doctrine of disseisin. Such an inquiry I regard as altogether useless. Instead of gaining light, by such a pursuit, we shall only be involved in deeper darkness.
    
      There is a principle of law, that a party disseised, has a right to do himself justice by entry, until his right of entry is taken away, and he is driven to his remedy by action. When the doctrine of disseisin was introduced; the action of ejectment was not known. Actions of assise and novel disseisin were the possessory actions, resorted to. All the feudal notions have long ago ceasedj and the reason of this doctrince of disseisin has also ceased. It is only the fiction, in the action of ejectment, which prevents its being a proper remedy, where a descent has been cast. This fiction has been created by the courts themselves. Will the court then apply an antiquated rule, as to disseisin, when the reason of that rule has ceased ? The plaintiff has applied to the law, and brought an action of ejectment; and will the court, on account of the fiction in that action, permit him to gain the possession, and drive the defendants to the .remedy of assise, or a writ of right ?
    . The only question before the court is, whether there was such a disseisin, when Isaac Teller entered, as will cast a descent, so as to toll the entry. I ask, again, if he was a disseisor, where is the disseisee ? An entiy by a person without title, is a mere wrongful possession, and not a disseisin. It has been a clear rule of law from the time of Lord Coke, that to constitute such a disseisin as will cast a descent so as to toll entry, there must be an actual ouster of some person, by violence or fraud. This was the' rule laid down by this court, in the case of Jackson, ex dem. Van Alen, v. Rogers,
      
       before cited.
    
      Isaac Teller is said to have died seised, in 1775. If subsequent to October 14th, 1775, it was in time of war, so that the entry was not tolled. The statute of limitations shows the legislative, sense, and must be the guide to this court, in fixing the time when the courts were not open for redress. The 14th of October, 1775, was the time when Governor Tryon was said-.to have abdicated 
      the government of the state, and the whole country was in confusion and disorder.
    It has been said,'that as this objection was not made at the trial, it cannot be made here. That rule applies only where evidence is not objected ■ to by the adverse party, and admitted; he cannot; afterwards, raise the objection.The plaintiff must recover on the strength of his own title. It is not required of the defendant to make his objection at the trial, where it goes to the very essence of the plaintiff’s right.
    It is enough, under the decision of the judge at the trial, that the defendants could, by any possibility, have shown a title, to give them a right to a new trial. Suppose the defendants patentees, or the representatives of patentees, without entry, the right of entry is not tolled. So in the case of a devisee or lessee for years. There are, then, three several cases, in which, admitting the facts as stated by the plaintiff, the defendants’ entry would not be tolled. The judge, therefore, ought not to have rejected the evidence offered, and the defendants are entitled to a new trial.
    
      
      
        Co. Litt. 237.
    
    
      
       1 Leo. 209.
    
    
      
       Gilb. Law of Ten. (4 ed.) 20-23.
    
    
      
       3 Bl. Comm. 176,
    
    
      
      
        Co. Litt. 239. b. Litt. s. 385,
    
    
      
       Litt.sect. 279 Co. List. ~81. a~ T Co.
    
    
      
       Co.Litt. 153 putting a
    
    
      
       Co. Litt. 257. b.
    
    
      
      
         Co. Litt. 3 b. 18. b.
    
    
      
      
         1Burr. 59. ted fact,
    
    
      
      
         Burn 108.
    
    
      
      
         Burr. 109.
    
    
      
       1 Salk. 246.
    
    
      
       1 Johns. Cas. 33. 36.
    
    
      
      
         Battle of Lexington was April 19, 1775.
    
    
      
       Gilb. Ten. 34. Litt. 412.
    
    
      
      
        Co. Litt. 239. b.
    
    
      
      
        Vol 1. p. 562. 24 sess. c. 183. s. 8.
    
    
      
      
        Co. Litt. 240. b.
    
    
      
      
        Co. Litt. 249. a. Litt. s. 411.
    
    
      
      
        Leo. 209.
    
    
      
      
         Johns. Cas. 34.
    
    
      
      
        Cowp. 218.
    
    
      
       1 Caines’s Rep. 84.
    
    
      
       Gilb. Ten. 28.
    
    
      
       3 Bl Comm. 167. 169. 178.
    
    
      
       l Burr. 107. 109.
    
    
      
       Bracton, lib. 4. c. 1, 2.
      
    
    
      
      
         Co. Litt. 153. a.
    
    
      
      
        Co. Litt. 153. b.
    
    
      
      
        Lib. 4. c. 3. folio, 161. b.
    
    
      
       See also, lib. 4. 216. b.
      
    
    
      
      
        Fleta, lib. 4.
    
    
      
      
        Glanville, lib. 13
      
    
    
      
       See. 279.
    
    
      
      
        Co. Litt. 181. a.
    
    
      
       Cro. Car. 302.
    
    
      
       2 Reeve's History of the English Law, 86.
    
    
      
       1 Burr, 112.
    
    
      
       2 Reeve’s History of the English Law, 341, 342.
    
    
      
       Co. Lilt. 237. b.
    
    
      
      
        Lombard, folio, 120. 70.
    
    
      
      
        Litt. s. 421.
    
    
      
      
        Co. Litt. 2496.
      
    
    
      
      
        1 Leo. 239.
    
    
      
      
        Co. Litt. 277. a. 3 Black. Comm. 167. Fleta, 195.
    
    
      
       Co. Litt. 238. a. 3 Black. Comm. 175. Co. Litt. 331. b. Litt. s. 592.
    
    
      
      
         3 Black. Comm. 169.
    
    
      
      
        Bracton, 216. a.
    
    
      
      
        Co. Litt. 237. b.
      
    
    
      
       1 Johns. Cas. 35.
      
    
   Kent, Ch. J.

delivered the opinion of the court. The first and most important question raised in this case is, whether a descent was cast, upon the death of Isaac Tel* ler, so as to toll the entry of the true owner.

The counsel, upon the argument, entered into a discussion of the general doctrine of disseisin; but I do not think it will be necessary to pursue at large that inquiry. All the books seem to agree that the ancient learning on ■ this subject has become abstruse. Disseisin, in the age. of Bracton, was considered in an extensive sense, and far beyond the idea which was first applied to it. Disseisin by election, in opposition to actual disseisin, was introduced very early, and became very prevalent, in order to extend the remedy by writ of assise, which was devised by Glanville, in the • reign of Henry IL ' It must therefore "be- difficult, in many cases, to know what' . . , J species or disseisin was intended, though it is said that - the old books, and particularly the book of assise* when they mention dissesins, generally relate to disseisins.by \ election. - The present question appears, however, to lie in a narrower compass; and by confining ourselves to a few plain and familiar authorities, we shall discover the-principle, that the doctrine of descent cast applies only ■ to.a seisin, commencing by wrong, and founded on an ouster of the true owner. Whatever may be the mean- • ing of disseisin, in other cases, its meaning when applied to the subject before us, embraces a tortious ouster. There must be a disseisin in fact. The rightful owner must have been expelled, either by violence, or by some act which the law regards as equivalent in its effects.

“ Descents in fee, which toll" entries, says Littleton, (s. 385.) aré, as if a man seised of certain lands, is by another disseised, and the disseisor hath issue. and dieth of such estate seised ; now the lands descend to the issue of the disseisor, by course oflaiV, as heir unto him. And because the law casts the lands upon the issue, by force of the descent, the entry of the disseisee' is taken away.” And in the next section, Littleton gives a like definition of a descent in tail, which tolls an entry. Both he and Gilbert have a chapter devoted to the subject, and they always speak or refer to a descent founded on a seisin commencing by wrong. “ In descents which toll entries, it behoveth,” says Littleton (s. 387.) “ that the man die seised in his demesne as of .fee.” A seisin in his demesne as of fee, is the strongest and highest estate which the subject can enjoy. It would then be very idle to talk of a descent cast, in the case of a rightful •seisin in, fee, for there would be no right of entry to be tolled in such a case. The doctrine can only exist and apply in the case .of a tortious seisin.

At the common law, if the disseisor, abator, or in-trader, (and these are mentioned by Coke, as the only wrongful acts of seisin, which will cast a descent,) had died seised soon after the wrong done, the disseisee and his heirs were barred of their entry. (Co. Litt. 238. a). This was deemed too harsh a rule, and the statute of 32 Hen. VIII. c. 33. was passed, saving the right of entry to the disseisee, unless the disseisor had been in peaceable possession, for five years next after the disseisin by him committed. This statute shows pretty plainly, what species of disseisin was then understood as applicable to this subject. It is entitled, “an act that wrongful disseisin is no descent in lawand it recites that whereas “ divers persons have heretofore, by strength, and without title, entered into lands, and wrongfully disseised the rightful owner, and so being seised by disseisin, have thereof died seised, by reason of which dying seised, the disseisee or such other persons, as before such descent might have lawfully entered, were thereby excluded of their entry and put to their action.” It is therefore enacted, “ that the dying seised of any such disseisor of any lands, having no right or title therein, should not be taken or deemed any such descent in the law, for to toll or take away the entry of any person, which, at the time of the descent, had good and lawful title of entry, . except,” &c.

The disseisin intended by this act, was one founded on a tortious expulsion of the true owner. This is giving the term its primitive and genuine meaning ; and in this sense it is always used, when applied to a descent cast, A mere entry upon another is no disseisin, unless it be accompanied with expulsion, or ouster from the freehold. Disseisin is an estate gained by wrong and injury; and therein it differs from dispossession which may be by right or wrong. This is the uniform language of the best authorities, from the time of Littleton. (Litt. s. 279. Co. Litt. 3. b. 18. b. 153. b. 181. a. Cro. Jac. 685. 1 Salk. 246. n. 2. 1 Burr. 109.)

This tortious seisin, the lessors of the plaintiff were bound to show affirmatively, if they would put themselves upon the strict and ungracious right of a descent cast. A peaceable entry upon land, apparently vacant, furnishes, fer se, no presumption of. wrong. The benign and legal intendment is otherwise. According to Lord Holt, (1 Salk. 246.) a bare entry on another, without an expulsion, makes such a seisin only, that the law will adjudge him in possession that has the right. This court has frequently recognised the same rule, that an entry not appearing to be hostile, was to be considered an entry under the title of the true owner. It lay, then, with the plaintiff to show his entry not congeable, pr to show a subsequent disseisin; for he entered upon vacant lands. We may infer title, from his ten years’ possession, sufficient to put the tenant upon his defence ; but we ought not to infer a tortious entry, or an actual ouster, sufficient to bar every defence. This would be a most rigorous conclusion, for it makes the ancestor of the plaintiff a disseisor; it tolls the entry of the true owner; it shuts out his defence, and drives him to his writ of right, which final remedy is now subject to the limitation of twenty-five years.

The subsequent use of the land by Teller was no disseisin. ' The case of Matheson v. Trot, (1 Leon. 209.) is a strong authority on this point. In that case, Henry Denny, the heir at law, when he came of age, claimed and sued out livery, or restitution of lands, out of the hands of the feudal lord, who had seised them as guardian for the infant. He then leased them for years, reserving a rent, and for years received the rents and profits from his tenant, and died so seised. This Was held not to be a requisite seisin to cast a descent, though the court admitted, that his lessee had gained a wrongful possession in fee. If here was not, during all this time an actual pedis possessio by the heir, (though the case says, he once walked over the lands with his tenant,) yet he held and enioyed the lands by his tenant; and the , , • , . , case showed conclusively, that he held them without title, for the lands had been devised in fee to his younger brother. This case, I think, is, in every view, much stronger in favour of a descent cast, than the one before us.

As it was, therefore, ruled, at the trial, that a descent was cast, and the evidence offered by way of defence, inadmissible, the court are of opinion, that there ought to he anew trial, with costs to abide the event of the suit.

New trial granted.  