
    Obed Doolittle, jun. and Rosetta, his Wife, against Asa Blakesley.
    June, 1810.
    MOTION for a new trial.
    ■ _ _ This was an action of ejectment in right of the wife, detnUiding the seisin of the fifth part of one undivS8®d' a certain lot of land situated in Cheshire, cofr* taining about nine acre Si
    
      Where the grantor in a deed descri- ^ bed the premises as the farm on which he then dwelt, this was held to be a latent ambiguity, which might be explained by evidence aliunde.
    
    That a particular piece of land claimed to be within such description was, at the time of the grant, in as tat e of nature, unenclosed, and separate from the rest of the farm, and that the grantor afterwards remained in possession, and occupied it as his own until his death, are cireumstanees admissible in evidence to show that such piece of land was-not within the grant.
    Where there has been an adverse possession of move than fifteen years against two tenants in common, one of whom is within the saving of the statute of limitation the right of the other is not thereby saved.
    
      The' disseisin was alleged to have been about 1st Ajiril, 1808. The defendant pleaded the general issue.
    On the trial said Rosetta claimed title to the premises; &s devisee under the Will of Moses Blakesley, deceased»' The facts Which appeared were as follows: Moses Blakesley, father of the defendant, and of said Rosetta, ¿h the 14th of February, 1776, was seised of the land described, and also of a tract of land with a dwelling-house thereon, lying directly south of the demanded premises* divided therefrom by a highway. On the same 14th of - February, 1776, said Moses executed and delivered to his son Asa, the defendant, a deed of “one half of'the farm on which he, said 'Moses, then dwelt, together with the one half of the old dwelling-house standing on said farm in Wallingford, in Cheshire parish, that is, in quantity and quality.” This was the only description in the deed of the land conveyed. Moses continued in possession until Sefitember 23d, 1789, when he executed and delivered to Lois, wife of the defendant, a deed of the other half of said farm without metes and bounds, and of half the land described in the declaration; and continued in possession of the whole until his death, which happened in March, 180?.
    A question arose as to the extent of the deed of February, 1776, from Moses to Asa, viz. whether it contained and conveyed the one half of the land described in the declaration; for if it did not, it was admitted that the plaintiffs were entitled to recover in right of the said Rosetta ; and in order to show that it did not, and to explain what was meant by the term “home farm,” as a latent ambiguity, the plaintiffs offered witnesses to prove that at the date of the deed of 1776, the land demanded was in a state of nature, uncultivated, unenclosed, and Separated from said farm by a highway; that afterwards said Mases possessed and improved it, and occupied the same to. the time of his death; that the defendant, in repeated instances, even after the deed to said Lois, asked liberty of said Moses to cut wood and timber on the land in question ; and that he gave it accordingly. To the admission of this evidence the defendant objected ; but the court overruled the objection; and witnesses were admitted and examined to the above facts.
    If, as before stated, no part of the land in question were contained in the deed from Moses the father to Asa the son, there was no question but that the plaintiffs Were entitled to recover ; but if a moiety was contained in that deed, then from the date thereof until September, 1789, when Moses conveyed the other moiety to Lois the wife of Asa, Moses and Asa were tenants in common; and upon the execution of the last deed, Asa and Lois became tenants in common of the whole of the described premises, and Moses became a stranger to the title. But Moses continued in possession till his death, a period of more than fifteen years afterwards: whether this possession was adverse or not, was a question of fact; and if adverse, a question of law arose. That Lois’s moiety was protected from the statute of limitations by coverture Was admitted by all: but whether Asa’s part was also protected by the disability of his wife, was the question.
    To this point the court gave it in charge to the jury} that even if they should find that the land in question, was all conveyed by said deeds to the defendant and said Lois his wife, yet if they found that said Moses had been in possession for more than fifteen years after said deed to said Lois, and held adversely to the defendant,said Moses had gained a legal title against the defendant, and the defendant was riot protected by means of the cover-ture of his wife, his co-tenant; and should they find the fact of adverse possession, they must find for the plaintiffs.
    
      A verdict being found for the plaintiffs, the defendant move^ f°r a new trial; which motion was reserved for./ the opinion of the nine judges.
    
      JV. Smith and Stafiles, in support of the motion.
    1. The first question is, whether the evidence objected to by the defendant, and admitted by the court on the trial, to explain the deed of 1776, was proper. Here it may be well to observe, that we make no objection tp, so much of the evidence as went to show the local situation of the land, or its state of cultivation. But the evidence to which we object is, that the grantor continued in possession after his deed, and exercised acts of ownership over the land. Such evidence is inadmissible to show that the land was not conveyed by the deed. Facts which took place subsequent to the execution of an instrument cannot be proved in any case, for the purpose of giving it a construction. It is more especially absurd to admit the grantor’s own acts as evidence of the extent pf his grant. His grant was the same, whether he after-wards remained in possession or not. Further, if the,grant* or’s remaining in possession is evidence as to part, it is as to the whole. It will follow, that the conduct of the grantor may be proved, not merely to explain, but to defeat his grant.
    But Moses Blakesley in this case was tenant in common with his son Asa, until the giving of the deed tp Lois in 1789. His continuance in possession, during this period, vras consistent with the nature of his estato. No inference, therefore, could arise. It does not appear that Asa was excluded.
    2. It is claimed by the defendant that though the land in question was conveyed by the deeds, yet the grantor regained a title by adverse possession subsequent to the' last deed. Our answer to this is, that he could not gain a title in this way, beeause Lois, the grantee in the deed of 1789, was, during the whole time, afeme co
      vert} said within the saving of the statute. Neither could he gain a title by adverse possession against Asa the husband; because he was tenant in common with his wife ; and the saving of one co-tenant extends to the Other. In Eaton v. Sandford, 2 Day, 523. it was decided that the rights of the husband were saved by the disability of the wifp.
    Daggett, contra.
    The defendant seeks for a new trial in this case, on the ground of the admission of improper evidence, and the misdirection of the court to the jury.
    1. As to the evidence. The plaintiffs offered to proven an occupation of the premises, and certain other acts of the parties, to show the extent of the grant. ’ The grant being of one half of the grantor's “ home farm,” it is seen at once to be necessary to find out what was intended by the home farm. Now, no testimony is better suited to this end than the repeated acts of the parties for a series of years. For this purpose the proof was admitted.. The authorities, we apprehend, warrant the admission. Adams v. Frothingham, 3 Mass. Reft. 352. Doe, d. Free-land, v. Burt, 1 Term Rep. 701. 703. Curzon et al. v. Lomax, 5 Esp. 60. are all of that nature. Nor is any rule of law opposed. If the grant were certain, it would doubtless be incompetent for us to vary its operation; but where it is uncertain, reason and authorities agree in giving it a true construction by proof like that we offer.
    2. Is the charge correct ? This depends on this question, shall the disability of one tenant in common operate in favour of his companion who is sui juris ? In the case of joint tenants, the title is one and indivisible. All must join in a suit for the recovery of the possession. When, therefore, the disabled person brings his action, he may recover, not only for himself, but/ for his co-tenants, Not so in the case of tenants in common. Thev cannot join at common law; their title is>dot oné and divisible. There seems, then, no reason that the disa*. . , bthty spoken of should extend to any oí the co-tenants. j^or are any authorities shown in proof of this doctrine.
    3. At any rate, the decision of the case is right; for it appears that the jury decided the case on the ground that the grant did not give the defendant the land in question. Why, then, should the cause be again tried ? Why, except that the jury might again give an opinion on a point already decided ?
    In reply to this last suggestion, the counsel for the defendant said, if the charge was wrong, he ought to have a new trial. A court will never speculate upon the influence that evidence which has been suffered to go to the jury, had upon their minds. 6 Fes. jun. 72. Neither c^i the inquiry be made what influence a charge had upon their minds. It would be impracticable as well as absurd. These motions come in place of bills'Of exceptions. Surely a party could not be deprived of his bill of exceptions to the direction off the court by showing that the jury disregarded it. If the court have erred in point of law, a new trial must be granted.
    On a subsequent day in this term, while the court had the case under consideration, the counsel were directed to argue the question, whether there is any difference between joint tenants and tenants in common as to the right of entry of all.being saved by a saving of the right of one ?
    
      Sta/iles. The incidents of a tenancy in common, and a joint tenancy, are the same so far as relates to possession. Where, the possessory rights of tenants in common arej in question, all must join no less than joint tenants. Their possessory rights are the same. The consequences resulting from possession must be the same. 2 Bl. Cm. 
      Í94. 3 Cruise's Dig. 410. 555. 14 Fin. Mr. 511, 512. pi. • 1; $. 5. Eairclaim, d. Empson,v. Shackleton, 2 Bl. Rep, ■690. [Smith, J. Is it the unity of title, or the unity of possession, that enables one to bring all ini] It is not -on the ground of title, but of possession, that the right of one to enter saves the right of all. f
    
    
      Daggett, contra.
    Several tenahts in common are out of possession. One can enter, being within the saving of the statute. He must sue alone. The others cannot join. How, then, can they get in ? But it would be otherwise with joint tenants. They must join; and if one has a right of entry, the title being an entire thing, the right is saved to all. The court cannot say that they shall not enter without depriving one of them of a right. The possession of one tenant in common is not the possession of the rest, so as to prevent the statute of limitations from operating against them. Earl of Sussex v. Temple, 1 Ld. Raym. 312. This decision is directly in point. It may be added, that there is no room for the application of the rule, that with tenants in common the possession of one is the possession of all, where all are out of possession.
   Braineud, J.

The first question is, whether the admission of the testimony to explain the extent of the deed of 1776 from Moses to Asa was proper ?

The term farm,” as to extent, is indefinite and ambiguous. A. grants or devises a farm situated in a particular parish in a particular town. He may own divers farms, or divers tracts of land, in the same parish. Such a grant or devise would not be void for uncertainty. It would not be void merely because from the face of it, it could not be ascertained which farm was intended, or how many of the tracts were meant to be included “in the term “farm.” Here would be an ambiguity arising from facts not in the instrument, which, , found to exist, may be removed'by other evid If a writing be not void upon the face Of it; and if, upon , . ,® , ' , . the lace ol it, the true meaning cannot be collected owing tesóme fact from without, recourse must be had to other, to extra evidence, to the knowledge Of persons and witnesses acquainted with the character and description of the subject matter.

A. devises a farm by the description of his “home farm.” What is meant by home farm, must in many instances be collected from the knowledge of persons acquainted with the devisor’s own understanding of his home farm at the time of making the devise. Whether a’particular piece of land was or was not, in the mind of the devisor, a part of his home farm, must frequently be ascertained from proof other than what arises from the will itself. On this point I would more particularly refer to Lord Cheney's Case, 5 Co. 68. Jones v. Newman, 1 Bl. Rep. 60. Doe, d. Freeland, v. Burt, 1 Term Rep. 701. 703. Curzon et al. v. Lomax, 5 Esp. 60. Adams v. Frothingham, 3 Mass. Rep. 352. and conclude that the admission of the testimony was proper to remove a doubt or explain an ambiguity arising from facts not apparent on the face of the deed.

The other question is, whether the charge of the court to the jury was correct ?

It is stated correctly, that one tenant in common may bring his action when he pleases; that he is not encumbered with his fellow tenant; but that joint tenants must join, and if one be under a legal disability, the whole and entire right is suspended and protected until its removal.

Tenants in common and joint tenants have one quality common to each — unity of possession. Hence it is said, that the possession of one is the possessioh of the other. And the position laid down in Com. Dig. tit. Limitation, 106; B. “That the possession of one joint tenant is the possession of the other, so as to prevent the statute nf ⅛ Imitations,” is not only true as it respect? joint tenant?, but also tenants in common; for in Fairclaim y. Shqekle-ton, S Burr, 2607; it is stated by the counsel, that “ bqth joint tenants and tenants in common have a joint possession; a joint occupation and management of the whole ; that the possession of one is the pospessjon of both* Lord Mansfield, in delivering the opinion of the court, does by no means impeach this doctrine; and, ds between themselves, it is true as to both. One tenant in common in possession is of course in possession for the others, and can never, by that possession, unless it be adverse, gain a title against them: it can never be adverse but by ouster — by some act amounting to a disavowal of the common tenancy, and a denial of entry. At this point in tenancy in common the statute of limitations begins to run, and the tenant in common thus ousted, has his remedy grounded upon his own independent title. In joint tenancy there can be no denial of title; for there is a unity of title, and one joint tenant cannot acquire a title against his fellow tenant by adverse possession; for the title is joint, and neither can bring an action grounded on title against the other.

A. and B. are joint tenants. A. is in possession, and suffers C. a stranger, to possess with him. The rights of B. cannot be affected by the possession of the stranger ; the title and possession of his joint tenant are his title and possession. B. could bring no action on his own independent title against C.

In case of tenants in common, as before observed, the possession of one is the possession of the other as it respects themselves. But as it respects strangers it is totally different. One tenant in common, as it respects his fellow tenant, is always safe in the possession of his fellow tenant, unless ousted. But when disseised, either by a fellow tenant, or a stranger, he has his remedy in his own right upon his own independent title ; and if he will not exercise this right within the 15 years, he must suffer the consequences of an adverse possession, an® lose his estate. ' ’

I am therefore of opinion that the charge was coiv rect*

In this opinion the other judges severally concurred.

New trial not to be granted.  