
    LITTLE v. MEGQUIER.
    An entry on land under a deed recorded, and payment of taxes, is no evidence of a disseisin of the true owner, unless the person who entered has continued openly to occupy and improve it.
    
    In such a case, though the deed may not convey the legal estate, yet the possession of apart of the land described in it, under a claim of the whole, by the bounds therein expressed, may be considered as possession of the whole, and as a disseisin of the true owner; and equivalent to an actual and exclusive possession of the whole tract, unless controled by other possessions.
    This was an action of trespass quare clausum fregit, for cutting and carrying away certain trees from the lots numbered 57 and 58 in the second division in Poland, between February 8, 1814, and February 8, 1820.
    The defendant, besides the general issue, pleaded — 1st, that the soil and freehold in lot numbered 57 was in Robert Waterman ; — 2d, that the soil and freehold was in Robert Snell, and the heirs of Edmund Megquier; — which were traversed, and issues taken thereon.
    The plaintiff, to prove the issues on his part, produced a deed from Oliver Osgood to himself, dated March 25, 1796, acknowledged June 23, 1814, and recorded August 1814, of one half of the lot numbered 57. He also produced a deed from Benjamin Osgood to himself, dated May 23, 1800, acknowledged May 23, 1804, and recorded August 13, 1804, of the other half of said lot.
    
    The defendant offered a deed from Nathaniel Sawtel, collector of taxes for the town of Poland for the years 1788 to 1791, and for 1793 and 1794 to Robert Waterman, of that part of the lot numbered 57 on which the supposed trespass ivas committed. This deed was dated April 1, 1795, acknowledged January 22, 1798, and recorded January 27,1801. He also offered to prove that Waterman, immediately after the giving of the deed to him, entered upon and survejmd the land, which was wholly uncultivated. And he further offered in evidence a deed of the same land from Waterman to Snell and Megquier, dated April 11,1809, recorded June 20, 1820. He also offered to prove that the tax-bills, warrants, and evidence of the proceedings on the part of Sawtel the collector were accidentally consumed by fire ; — and that Waterman, and his grantees, since the date of the deed to him, had paid'all the taxes assessed on the land described .in his pleas, to the present time.. But the presiding Judge refused to admit ihe deed from Sawtel in evidence, unless the requisites authorizing him. to sell, so far as they w.ere recorded on the town books, were first proved ; — and these not being shewn, he directed the jury to return a verdict for the plaintiff, which was taken subject to the. opinion of the whole Court upon the correctness of that direction;
    
      Fessenden, for the defendant,
    now contended--1 ¡ .That the deed from Sawtel .to Waterman, being recorded; is equivalent to litery of seisin, and works a disseisin of all others claiming title to the same Jabd. — 2. That six years’ possession, by the operation of the Stat. 1821,' ch. 47, which gives the tenant a right to the value of his improvements made on the land, by necessary implication takes away the right of entry, and bars the action of trespass quare clausum \ because in this action the improvements cannot be estimated. — 3. That the regular evidence of the collector’s proceedings being lo'st, the presumption of law is that his doings weie regular and legal, until the contrary appears.
    
      Little, for the plaintiff,
    replied, that.if á deed recorded was evidence of an ouster or disseisin, then the deed from Osgood to the plaintiff is such, which was given in 1796 and recorded in I814&wkey;that if the Stat. 1821, ch. 47, can be understood to fake away the right of entry, yet it applies only to cultivated lands, held by open, visible and actual possessionand that every person claiming under a collector of taxes, must at least shew a legal authority in the collector' to sell the. landsj Thurston v. Little, 3 Mass. 429. Though the collector’s papers -were lost, the town records might have been produced to shew his elec-, fion, and the raising of the taxes. There is therefore no deed under which the defendant can claim, and his entry in 1801 tVas a mere trespass.
   Mellen C. J.

delivered the opinion of the Court as follows.

On examining the facts in this case it is very clear that the deed from the collector to Waterman was not admissible in' endence as proof of title to the locus in quo ; there being no proof adduced to shew that any preliminary proceedings on the part of the tov/n of Poland, or its officers, in relation to the voting and legal assessment of the taxes, for'the non-payment of which the land was- sold, had ever existed. The loss of some of the papers, which had been committed to' the collector, whether by fire or otherwise, can be no reason for the non-production of copies from the town records, proving the legal choice of assessors and collector,--their having been" duly sworn, — the tax regularly assessed, &c. — On this’point the defence fails.

But it is contended that though the deed from the collector to' Waterman was not admissible' as proof of title,-it was good evidence of the extent of his claim; — having been recorded in the registry of deeds in the year 1801';.- and he having caused the land to be rim out according to said deed,- and paid the taxes which had been assessed upon it, though the same was a wild' and uncultivated lot of land, still these facts,-together with the' record of the deed, constituted a disseisin of the plaintiff. And as' lie has not made any entry on the land since, he has had no’ possession sufficient to authorize him to maintain this action." We cannot admit the correctness of this reasoning, or the conclusion drawn' from it'.- The principle certainly cannot be applicable, unless'in a(cáse where the person’ claiming title, by a-deed duly registered, has entered' into possession of the land-under his deed, and continued openly to occupy and improve it.— in such a case, though the deed may not convey the legal' estate, still the possession of a part of the land described in it,under a claim of the whole,- by the boundaries therein ex-' pressed, may be considered as a possession of the whole and as a disseisin of the true ownerand equivalent to an actual and-exclusive-’possession of the whole tract, unless controled by other possessions.

On this ground also the defence fails. .We are all satisfied' that the opinion of the Judge by which the deed from Sawtelp the collector, to Waterman was rejected, wrns correct; and ac-" cordingly there must be

Judgment on the verdict  