
    Hall & al. vs. Bean.
    
      William. Bean, being the owner of a farm, conveyed it to Elijah Bean, taking back a life lease of one half in .common, and afterward mortgag'ed the said undivided half to Hall Conant. Subsequent to which, Elijah Bean mortgaged the whole to Hall alone. In an action by Hall <£■ Gonant, against William Bean, Jr., to recover possession of one half, the latter pleaded special non tenure, averring that he held under Elijah Bean, who was tenant of the freehold. Evidence that the defendant said, on receiving a letter from Hall, alone, threatening a suit if he persisted in carrying on the farm, that he did not care for the title of Iiall, and should go on as usual, was held not to be conclusive evidence to negative the plea.
    This was a writ of entry, in which the demandants counted upon their own seizin within twenty years and a disseisin by the tenant, of one undivided moiety of a certain farm, lying in Water-borough, in this county.
    The defendant pleaded the general issue, and filed a brief statement under the statute, embracing, substantially, a plea of special non tenure; avering .that he held and occupied as tenant at will, under Elijah Bean, who was tenant of the freehold.
    The demandants, to maintain the issue on their part, introduced a deed of mortgage, dated March 14th, 1827, from William Bean, 
      father of the defendant, conveying the demanded premises. Also, a deed of mortgage from Elijah Bean to David Hall, one of the demandants, dated November 26, 1828, conveying the whole farm, and describing it as the same that he purchased of his father, William, Bean, and of which he gave the said William Bean a lease of one undivided half part during his natural life, and the life of his wife.
    The demandant also proved, that the defendant had occupied the whole farm in common with Elijah Bean, since the year 1830, taking one half of the income of said farm.
    They also proved by Joseph Bean, that William Bean, Jr., the defendant, showed him a letter he had received from Mr. Hall, one of the demandants, in 1832; in which he, said Hall, stated that the respondent must not be put out with him, Hall, if he commenced a suit against him, the respondent, if he carried on the land any longer, — that the respondent laughed and said he was not afraid of Hall’s title, and that he meant to continue and carry on the farm as he had done:' — -and that, at another time, when the respondent was at work upon the land, the same year, the respondent told the witness that he was not afraid of Hall's claim.
    It was also proved that the whole farm was carried on and improved in common, by William Bean and Elijah Bean, from the year 1813 to 1830 — and since that time, in the same way by William Bean, Jr. and Elijah Bean — the father, William Bean, having that year left the premises and removed to Parsonsfield, to reside with another son.
    
      Elijah Bean testified, that both his father and the defendant occupied the premises as aforesaid, by his consent and agreement.
    The respondent introduced the deed before mentioned, from William Bean to Elijah Bean, dated February 1, 1813.
    There were two counts in the writ, and the Chief Justice, who presided at the trial, ruled that upon the testimony, if true, the demandants could not maintain their action upon the first count, which the demandants, upon leave, struck out. As to the evidence applicable to the second count, the Judge ruled that the testimony of Joseph Bean was sufficient, if believed, to show that the defendant held the premises adversely to the demandants’ title, and as tenant of the freehold. If, in the opinion of the Court, this ruling was correct, the default, which was entered by consent-, was to stand ; otherwise it was to be taken off, a new trial granted, and the plaintiff’s first count to be restored.
    
      Howard, for the tenant,
    argued against the correctness of the ruling of the Judge, at the trial, and cited the following authorities : Knox v. Silloway, 1 Fairf 201 ; Me Clung v. Moss, 5 Wheat. 116; Chapman v. Gray, 15 Mass. 439; Brown fy al. v. Ward Of ux. 17 Mass. 68; Higbee al. v. Rice, 5 Mass. 344; Shephard v. Ryers, 15 Johns. 501; 2 Cruise, 530; 3 Wilson, 118; 1 Term Rep. 758; Fox &f al v. Widgery, 4 Greenl. 219; Camming v. Wyman, 10 Mass. 464; Tuffis v. Seabury, 11 Pick. 140; Morton v. Fairbanks, 11 Pick. 36S; Aylwin v. Ulmer, 12 Mass. 22; Tyler v. Ulmer, 12 Mass. 169; Benham v. Carey, 11 Wendell, 473.
    
      Goodenow, and N. D. Appleton, for the demandants,
    endeavored to maintain the correctness of the ruling of the Judge, citing the following authorities: Proprs. Ken. Purchase v. Springer, 4 Mass. 416 ; Boston Mill Corporation v. Bulfinch, 6 Mass. 229; Porter v. Hammond, 3 Greenl. 190; Brigham v. Welch, 6 Greenl. 376 ;1 Bur. 110; Dewey v. Brown, 2 Pick. 387 ; Somes v. Skinner, 3 Pick. 52; Davis v. Mason, 4 Pick. 156; Lamere v. Barker, 10 Johns. 312; Jones v. Ins. Co. of North America, 4 Dal. 249; Parlin v. Macomber, 5 Greenl. 413 ; Jackson on Real Actions, 91, 95 ; 5 Dane’s Abr. 382 ; Wittes’ Rep. 25; Jackson v. Parkhurst &f al. 9 Wendell, 207.
   Parris J.

delivered the opinion of the Court.

As to the first ruling of the Judge, that upon the evidence introduced, the plaintiffs could maintain their action on the second count, it is unnecessary now to give an opinion, except so far as it relates to the character of the tenant’s possession.

The demandants claim possession of an undivided moiety of the demanded premises, under a mortgage deed from William Bean, the father. The tenant, by a plea of special non tenure, alleges that, at the time of suing out the demandants’ writ, he was not, and never since has been, tenant of the freehold, but then held and continues to hold and occupy the premises, as tenant at will under Elijah Bean, who is, and at the time of suing out the writ, was, and ever since has been, tenant of the freehold.

If the tenant succeed in supporting his plea by proof, he will shew conclusively that there is no cause of action, and will, therefore, be entitled to judgment.

The Judge ruled, that the testimony of Joseph Bean, if believed, was sufficient to show that the defendant held the premises as tenant of the freehold. By that testimony it was proved, that William Bean, Jr. the tenant, shew the witness a letter from IIall, one of the demandants, in which he stated that the “ respondent must not be put out with him, Hall, if he commenced a suit against respondent, if he carried on the land any longer ; that the respondent said he was not afraid of Hall’s title, that he meant to go on and carry on the land as he had done and that, in a subsequent conversation, he said, “ he was not afraid of Hall’s claim.” Now, this evidence taken by itself, without any reference to other facts in the case, W'ould be sufficient, perhaps, to negative a plea of non-tenure. But it is to be kept in mind, that Hall had a claim to the premises, separate and distinct from that which he and Conant held under William Bean, the father. Hall’s separate title was by mortgage from Elijah Bean, who continued in possession, and who testified, as reported by the Judge, that William, Jr. the tenant, occupied the premises by his “consent and agreement.” When Hall demanded possession, the tenant might well suppose that it was under his mortgage deed from Elijah, and if actually in under Elijah, as testified by the latter, the tenant’s statement to Joseph Bean would not be such a direct assertion of claim as tenant of the freehold, as necessarily to exclude any other construction. If so, then, although Joseph Bean’s testimony should stand uncontradicted, the tenant’s plea may also stand as not inconsistent with it. If he was not in under Elijah, then his declaration to Joseph would be evidence against him; but if he did so hold, as testified by Elijah, then his declarations might be susceptible of a construction consistent with his plea. The fact how he held, whether as mere tenant at will under Elijah, or as tenant of the freehold, we think, ought to have been settled by the jury, and, accordingly, the default must be taken off and a new trial granted.  