
    * Aaron Porter versus Jeremiah Hill. 
    
    
      One joint-tenant cannot convey a part of the land holden in joint-tenancy by metes and bounds to a stranger. — Nor can one entering under such a conveyance be a disseisor of the other joint-tenants; for one joint-tenant cannot be disseised by a stranger unless all are disseised; and the grantor was not disseised, as the grantee entered by his consent. The grantee in such a conveyance, therefore, gains no seisjn, either by right or by wrong.
    Where a grantee of land has recovered judgment and satisfaction against his grantor for a breach of his covenant of warranty, he cannot afterwards recover tile land granted on the grantor’s .acquiring a more perfect title.
    This was a writ of entry sur disseisin in the per, wherein three several parcels of land lying in Biddeford are demanded. The demandant counts upon his own seisin within thirty years, and alleges a disseisin by John Pitts, who demised to the tenant.
    On the trial of the general issue, the jury found a special verdict, containing the following facts, viz.: That John Tyng, being seised in fee simple of a large tract of land, including the demanded premises, sold the same in fee to Benjamin Nason, Jun., and Ezekiel Bradstreet, in joint-tenancy, who afterwards reconveyed the land to the said Tyng, in fee and in mortgage, as collateral security for the payment of a bond mentioned in the verdict; — that, after the conveyance by Tyng, and previous to the execution of the mortgage, Nason and Bradstreet made a paroi partition, and occupied severally ; — that, on the same day on which the mortgage was executed, Nason conveyed a parcel of the land in his several occupancy, including one of the parcels demanded, to the demandant in fee, the deed not being registered until after the registry of the mortgage deed; — that afterwards Bradstreet conveyed by his deed to the demandant the other two parcels demanded, to hold in fee; — that the deed from Nason to the demandant, contained the usual covenants, that Nason was seised in fee simple, and that he would warrant the premises against all persons; the demandant sued Nason in an action of covenant broken on the said covenants, alleging that the same were broken; in which suit the demandant recovered against Nason the consideration money he had received from the demandant, and also one thousand dollars in addition thereto; — that Bradstreet, after his deed executed to the demandant, released to Nason all his interest and estate in the lands which Tyng had conveyed to them in joint-tenancy; — that, after the demandant * had recovered judgment against Nason, which was posterior to Bradstreet’s release to Nason, the latter conveyed all his right in the lands conveyed by Tyng, as aforesaid, to James Sullivan ; — that, on the next day, Sullivan conveyed the same to John Pitts, who, on the same day, discharged a judgment, which he had before recovered, as executor of the last will of the said Tyng, on the bond, for securing the payment of which the mortgage was given ; — and that Pitts afterwards entered and conveyed the tenements demanded to Hill, the tenant.
    The cause was argued before the Chief Justice, and Sewall and Thatcher, Justices, upon the verdict, at the last May term, in this county, by King for the demandant, and Mellen for the tenant; after which the action was continued for advisement, and at this term, Sewall, J., observed that the judges, before whom the argument was had, had conferred together, in which conference Parker, J., joined, and, having agreed on a result, the Chief Justice had written an opinion, and being prevented by bodily indisposition from personal attendance at this term, he had transmitted it to the justices present, which opinion was now pronounced by the presiding justice as follows: —
    
      
      
         [See Porter vs. Perkins, 5 Mass. Rep. 232.— Perkins vs. Pitts, 11 Mass. Rep 125. — Ed]
    
   Two principal points arise out of the facts found by the jury in this case: — one as to the parcels claimed by the demandant under Bradstreet’s deed to him; the other as to the parcel which the demandant claims under Nason’s deed.

As to the first, nothing passed by Bradstreet’s deed. The partition made by the joint-tenants, by parole, is void, as within the statute of frauds; and, notwithstanding their subsequent several occupancy, they remained jointly seised in fee simple, as they are to be considered as having the legal estate against all persons but the mortgagee. And one joint-tenant cannot convey a part of the land, by metes and bounds, to a stranger. If he could, his grantee would * become tenant in common of a particular part with- the other joint-tenant, who, in making a legal partition, might, notwithstanding, have the whole of the part, thus conveyed, assigned as his purparty. The entry of the demandant, under Bradstreet’s deed, gave him no seisin, but he was a mere several occupant. Nor can he be considered as a disseisor of Bradstreet, as he entered by his consent; and he could not be a disseisor of Nason, for one joint-tenant cannot be disseised by a stranger of any particular part, unless all the joint-tenants are disseised, From the verdict, therefore, it does not appear that the demandant was ever seised of the parcels described in Bradstreet’s deed — consequently Pitts did not disseise him, and he cannot recover his seisin in this action. His remedy must be against Bradstreet, on his covenants.

The like difficulty meets the demandant on the second point. His conveyance from Nason is of a particular part by metes and bounds, before partition was made between the joint-tenants. But it is said for the demandant, that as Nason afterwards redeemed the mortgage, by satisfying the judgment, he and all those claiming under him are estopped from denying that an estate in fee passed by his deed. What might have been the force of this observation, if the demandant had not recovered judgment against Nason for the breach of his warranty, and obtained satisfaction, it is now unnecessary to decide.

When a warrantee in warrantia chartee recovers, and has seisin of other lands of the warrantor to the value, he cannot afterwards recover of the warrantor the lands warranted. For although the warrantor cannot aver against his own deed, yet the warrantee may aver against that deed ; and if his averments are verified by matter of record, the warrantor may afterwards avail himself of that record against the warrantee, the record being of a higher nature than a deed,

If, therefore, the demandant had, after his judgment and satisfaction, sued Nason for the land, the latter might have * defended himself by showing that judgment, which had falsified his deed. And as the demandant could not recover the land against Nason, after he had redeemed the mortgage, so he cannot recover against any persons who claim under Nason, and are thus privies in estate to that judgment. The tenant is entitled to judgment on the verdict.

Costs for the tenant. 
      
      
         [Such a conveyance has been held to be valid and effectual against the grantor, and all claiming under him. — Varnum vs. Abbot & Al., 12 Mass. Rep. 474. — Bartlett vs. Harlow, 12 Mass. Rep. 348. — Baldwin vs. Whiting, 13 Mass. Rep. 57. — Rising vs. Stannard, 17 Mass. Rep. 202. — Ed.]
     
      
       [In Porter vs. Perkins & Al. (5 Mass. Rep. 236,) which was ejectment by the same plaintiff against tenants claiming through the same grantor, it was held by the Court that the plaintiff gained a seisin so as to support a writ of entry, and that nothing passed by the release from Bradstreet to Nason. — Ed.]
     
      
      
         [Stinson vs Sumner, post, 143. — Ed.]
     
      
      c) [It does not appear that the mortgage had been legally discharged. The case only finds that the judgment for the mortgage debt had been discharged. It would seem, from the opinion of the Court in Parsons vs. Wells, (17 Mass. Rep. 419,) that the mortgage was not thereby ipso facto discharged. Although, in Porter vs. Perkins & Al., (5 Mass. Rep. 233,) an action by the same plaintiff against tenants claiming under the same grantor, it was treated_as being entirely discharged; and the Court said that u therefore it might be laid out of the case, as if never made.” Still, however, in Perkins & Al. vs. Pitts, (11 Mass. Rep. 125,) an action by the same defendants against the same grantor, it is regarded by the Court as a subsisting mortgage, and the case seemed tn turn nrincipally upon that point. — Ed.]
     