
    Dexter Higbee and Others versus Abner Rice.
    Grants of land by the legislature to two or more persons in fee are to be construed as conveying to the grantees estates in cominon, unless a different tenure be expressed in the grant.
    Where one enters upon land under a deed duly acknowledged and recorded, he acquires a freehold either by right or by wrong; if by wrong, it is an actual disseisin of all claiming the same land under a different title
    This was a writ of entry, in which Dexter Higbee, Silas Higbee, David Higbee, and Aaron Gray, and Hannah, his wife, in her right, demanded against the tenant two undivided eighth parts of two hundred acres of land * in Sheffield, known by [ * 345 ] the name of Higbee’s Grant, and of which the demand-ants allege that they were seised within thirty years last past, and until they were disseised by the tenant.
    The general issue was pleaded and joined ; and upon the trial at the last May term in this county, before Sedgwick, J., it appeared that a highway runs through the demanded premises, and that the tenant had been in the quiet possession of all the land on the west side of that way for more than thirty years. That part of thé preñases therefore was out of the question. As to the residue of the premises, a general verdict was taken for the demandants, subject to the opinion of the Court, upon the following facts reported by the judge who sat on the trial, it being agreed that the verdict might be amended or altered, so as to make the same conform to the principles of law.
    The demandants are the children and heirs of Daniel Higbee, lately of Sheffield, deceased, and also the grandchildren of Daniel Higbee, deceased.
    On the 15th of June, 1763, the provincial legislature, on the petition of Edward Higbee, in behalf of himself and his brothers and sisters, children of Daniel Higbee, the grandfather of the demandants, passed an order in these words, viz. “ Ordered that there be granted to the petitioner Edward Higbee, and his brothers, Daniel, Wheeler, Elijah and Elnathan, and his sisters, Lavina, Hannah and Rachel, two hundred acres of the unappropriated lands in this province, in the county of Berkshire, on the west side of Sheffield, including the lands Daniel Higbee in his lifetime entered upon, and his said heirs are now inpossession of; provided they take a survey of the same by a surveyor and chainmen under oath, and return apion thereof to the General Court for confirmation within one year from this time.”
    
    On the 12th of June, 1764, another order of the legislature was passed in these words, viz. “ Ordered that the * within -[ * 346 ]' plan be accepted, and that the lands therein delineated and described be confirmed to the said Edward Higbee and others, and to their heirs and assigns forever.”
    
    It was agreed that the plan referred to in the. last-mentioned order described the demanded premises.
    On the 19th of December, 1769, Edward Higbee, mentioned in the grant, conveyed his part of the land to Daniel Higbee, the father of the demandants. It did not appear when Daniel Higbee, last mentioned, died; but it was before the year 1791. On the first day of March, 1791, all the grantees above mentioned, except Edward, Daniel, and Lavina, made a deed of bargain and sale of the land granted as aforesaid, to Abraham Burrall, his heirs and assigns, which is expressed to be made for the consideration of ten pounds. The limitation and uses of the estate granted by that deed are expressed in the following words, viz. “ To have and to hold the above-granted and bargained premises unto him, the said Abraham Burrall. 
      his heirs and assigns forever, hereby engaging to warrant and forever Defend the above-granted premises from all lawful claims, excepting ohn Rice and Benjamin Griggs, to and for the uses and trusts hereafter mentioned and expressed, that is to say, the one third part of the said granted and bargained premises for the use and behoof of Mary Higbee of Sheffield aforesaid, widow of the said Daniel Higbee, for and during the term of her natural life, and after her decease for the use, benefit and behoof of Dexter Higbee, Hannah Higbee, Silas Higbee and David Higbee, infant children of the said Daniel Higbee and Mary Higbee, and their heirs and assigns forever, in the proportion following, viz. To the said Dexter, his heirs and assigns, two fifth parts, in five equal parts to be divided, and to the said Hannah, Silas and David, their heirs and assigns, each one fifth pari thereof to be divided as aforesaid; and the remaining two thirds of the said granted and bargained * premises to be for the me of [* 347 ] paying such debts of the said Daniel, deceased, as his personal estate shall be insufficient to discharge; and all that shall remain after the debts are discharged to be for the use, benefit and be-hoof of the said Dexter, Hannah, Silas and David, the said infants, and their heirs and assigns, in the same proportion as the said remainder of the said third part after the decease of the said Mary is to be divided, as is above expressed.”
    
    On the 13th of May, 1796, Abraham Bwrrall, by a deed of bargain and sale, in consideration of five hundred dollars, conveyed the whole of that part of the demanded premises, which lies on the east side of the highway, to Rice, the tenant in fee simple ; and thereupon immediately afterwards the tenant entered and took possession of the premises described in the said deed.
    No other ouster was proved. Daniel Higbee, the father of the demandants, was in possession of the demanded premises on the east side of the highway until his death, and the possession was continued in behalf of the children, the demandants, until the entry of the tenant subsequent to Bwrrall’s deed to him. Mary, the widow of Daniel Higbee the younger, is still alive.
    The following questions were made at the trial.
    1. Whether the legislative grant to Edward Higbee was a grant constituting a joint tenancy or a tenancy in common.
    2. Supposing that the grant constituted a joint tenancy, whether the demandants could recover for that part which the survivors conveyed to the use of the widow, Mary Higbee.
    
    3. Whether the trust intended to be vested in Abraham Bwrrall authorized him to convey the premises, as he undertook to do, by his deed of the 13th of May, 1796, to the tenant.
    
      4. Whether, under any view of this case, an actual ouster is necessary to be proved.
    [ * 348 ] * And now at this term, Dewey, of counsel for the demandants, confined his observations to theirs# and fourth questions reserved by the judge ; and as to the first, he insisted that by the original grant of the General Court to the children of Daniel Bigbee, a tenancy in common was created. No authorities pertinent to this question can be produced; but the uniform construction of grants of this kind, always acquiesced in without being brought into question, must be decisive. Another construction at this day would introduce inconceivable confusion, and unsettle a vast proportion of estates in the country, and there is nothing in the language of this particular grant showing the intention of the legislature to create a joint tenancy.
    But if the grantees were joint tenants, still, as to the one eighth conveyed by Edward to Daniel, the joint tenancy was destroyed by the alienation.
    Upon the fourth question, Dewey insisted that here was sufficient evidence of an ouster. The entering into the common rule of confessing lease, entry and ouster, in the English practice in ejectment, is equivalent to proof of an actual ouster . And the plea of nul disseisin to a writ of entry is tantamount to a confession of lease, entry and ouster in the English ejectments. And as to tenants in common, although it is generally true that the possession of one tenant in common is the possession of all, yet if one claims the whole, and continues in possession, such possession amounts to an ouster of his co-tenants .
    
      Ires and Hulbert, for the tenant,
    agreed that the more usual grants of large tracts of land by the government, as townships, which were usually made to many individuals unconnected with each other, had always been considered as creating an estate in common. But here was a grant to a small number, and those brothers and [ * 349 ] * sisters. The argument from the inconvenience of creating a joint tenancy has therefore by no means so strong an application in this case as in common cases.
    The statute of 1785, c. 62., directing how joint tenancies shall be created, was cited at the trial as having a bearing upon this case. That act essentially altered a principle of the common law, and was far from being intended as a declaratory act. But let its intent be what it may, it can have no operation to affect the construction of this grant, made long before the date of the act.
    
      As to the proof of ouster, the tenant has pleaded that he never disseised the demandants, and the demandants have not showu that he had. If the tenant was a tenant in common with the demand-ants, so far is he from ousting them, that the very possession of the tenant is evidence of the possession of the demandants themselves, and by demanding an undivided part of the premises, they show the tenant to hold in common with them.
    
      Bidwell, Attorney-General, in reply.
    The grant to Edward Higbee, and his brothers and sisters, was to them as heirs of their father, which of itself excludes the notion of joint tenancy or survivorship.
    
      
      
        Oates ex dimiss. Wigfall vs. Brydon & al. 3 Burr. 1895
    
    
      
      
        Fishar & al. vs. Prosser, Cowp. 218.
    
   The opinion of the Court was afterwards delivered to the following effect by

Parsons, C. J.

Four several points were reserved by the judge. The second and third arise from the consideration of the effect and operation of the trusts expressed in the deed to Abraham Burrall. But as the demandants do not claim under this deed, nor under the grantors, and as they are not parties or privies to it, and their rights cannot be affected by it, it is unnecessary particularly to state these points, or to give any opinion upon them.

The first point arises on the construction of the legislative grant. The tenant contends that the grantees took as joint tenants, and that on the death of Daniel, the * father of the de- [ * 350 ] mandants, his eighth part survived to their uncles and aun*s If this were the true construction, yet, as was observed at the bar, their father at his death was also seised in fee as a tenant in common of the eighth part, which he purchased of his brother Edward, and which descended to the demandants as his children and heirs.

But the demandants have further argued that the grantees under the legislative grant took as tenants in common, and consequently that on their father’s death the eighth part conveyed to him as an origina, grantee, as well as the eighth part purchased of their uncle Edward, descended to them.

If this grant from the legislature is subject to the same rules of construct’ in as grants by private persons, it is very clear that the tenant’s position must prevail as to one eighth. But a grant by the legislature is a statute conveyance, and the intent of the legislature in passing the resolution in this case, must govern.

Most of the public lands, which were aliepated by the late province, and also by the commonwealth, were passed by virtue of acts or resolutions of the legislature Generally the lands were granted in large parcels, to a great number of grantees, on condition of setilement, and for the purpose of forming towns to share in the pub-lie burdens, when the inhabitants should be of sufficient ability. These legislative grants have invariably, and from the early settlement of the country, been considered as vesting in the grantees and their heirs estates in common. This practice has been un versai, and we believe not an exception can be produced. From .¿.ng use it has acquired the force of law, and a decision repugnant to it would produce infinite confusion, and affect very many titles to land in the state. We therefore consider ourselves bound to decide, as a rule of property not to be disturbed, that grants, by virtue of acts or resolutions of the legislature to two or more [ * 351 ] persons * in fee, are to be construed as conveying to the grantees estates in common; unless a different tenure should be expressed in the grant.

That such was the intent of the legislature, in passing the resolution before us, cannot admit of reasonable doubt. Daniel, the grandfather, had taken possession of part of this land: on his death the legislature recognize a continuance of the possession in his heirs. The petition to the legislature for the grant was by Edward for himself and his brothers and sisters. It is manifest that the grant was made to the children of Daniel as his heirs, he being then dead, and his heirs praying for it in his right. But as heirs they would not have taken as joint tenants, and we cannot presume that the legislature intended that, as grantees, they should hold in joint tenancy.

As to the first point, it is our opinion that the grantees took under the resolution an estate in fee as tenants in common.

The fourth point reserved is, whether, under any view of this case, an actual ouster is necessary to be proved.

It has been argued for the tenant that, as the demandants claim two eighth parts against him, he is supposed by them to be a tenant in common with them; that they cannot recover, without proving against him an actual ouster ; and that no facts were proved to warrant the jury in presuming any disseisin committed by him.

It is true that the mere pernancy of all the profits by one tenant in common, is not an ouster of another tenant in common. And it will not be denied, that in ejectione firmce, which is an action of tres pass against the defendant for ejecting the plaintiff from his farm, under the general issue of not guilty, if the parties were tenants in common, the plaintiff, to recover, must prove an ouster by the defendant. We speak not of the fictitious, but of the actual ejectione firmce, in which neither the lease, nor the entry, nor ouster is confessed. And the reason is evident, because the ouster is not only charged in the writ, but is by the plea put in issue.

[* 352 ] * But a writ of entry will lie only against a tenant of the freehold, and if he does not disclaim, or plead non-tenure, he admits himself to be tenant of the freehold by the plea of nul disseisin.

In this writ the demandants demand of the tenant seisin of two eighths. If he admitted the demandants’ title, he might have pleaded that he did not hold the two eighths demanded against him, and this he might well plead, although he claimed to be seised of the remaining six eighths, as a tenant in common with the demandants. On this plea of non-tenure, he might have compelled the demandants to prove an ouster, to entitle themselves to a verdict. But non-tenure cannot be given in evidence under the general issue in this action.

Upon the principles applicable to a writ of entry, it would seem reasonable that in this case, under the general issue, the demandants were not obliged to prove an actual ouster. For if the demandantshave proved their seisin in fee as alleged, and the tenant, by his plea, has alleged that he has the freehold of the tenements demanded, all that remains for him is to show that he entered justly by judgment of law; and if he fail, the issue is with the demandants .

It is not, however, necessary to decide this question at this time, because we are satisfied that the demandants sufficiently proved an actual ouster. Without considering in this view the effect of the trust deed to Abraham Burrall, it is stated that he, claiming the legal estate, conveyed the two hundred acres to the tenant in 1796.

A conveyance by deed, duly acknowledged and registered, is by our statute of enrolments equivalent to livery of seisin. Under this deed, the tenant entered into the whole, and acquired a freehold estate in it, either by right or by wrong. If by wrong, as appears in his case, it was an actual disseisin; and judgment must be entered on tho verdict for the demandants. 
      
      
         Kelleran vs. Brown, 4 Mass. 443. — Pray vs. Pierce, 7 Mass. 381. — Alden vs Murdock, 13 Mass. 259. — Prescott vs. Hutchinson, 13 Mass. 439. — Roberts vs. Whiting, 16 Mass. 186. — Sed Quære. In a writ of entry sur disseisin, non disseisivit is the general issue. Rost. 272. b. 283. a. — Booth, 179. 1 Roscoe, 226., the remedy is merely possessory, and concurrent with ejectment. Co. Lit. by Thomas, vol. 3, p. 194., note A. Jlrclib. Civ. pi. 475. Under tins issue a disseisin or not, is the very thing to be proved.
     