
    Windsor County,
    February Term, 1826.
    
      John Bowker vs. Samuel Walker, Jr.
    
    , íf A enters upon land and makes permanent improvements under a written contract with B for the purchase of the land, and before completing the payment of the purchase money executes a deed to C, neither C nor his grantees, though ignorant of the agreement with B, can, in general, dispute the title of B.
    This was an ejectment for two tracts of lands in Chester, one of 100 acres and the other of 20 acres, to which the defendant pleaded not guilty. The cause was now heard upon exceptions taken and certified at a jury trial in this court at a former term.
    The exceptions showed that the plaintiff relied upon a right to recover by possession; and for that purpose produced and read in evidence a vendue deed of a large tract of land, of which the premises in question formed a part, from Waitstill Ranny to Ezra Sargeant, dated June 10, 1799. He also gave in evidence a deed dated Dec. 10, 1799 from Ezra Sargeant to Timothy Thompson, of 130 acres, including the 100 acre tract now in question,and a re-conveyance of the same from Thompson topar-
      
      geant dated Sept. 19, 1803. He also read in evidence a deed dated Sept. 22d 1803, from Ezra Sargeant to Jabez Sargeant of the whole tract contained in said deed from Waitstill Ranny. — The plaintiff called Timothy Thompson as a witness, who testified that he took possession and made improvements under his said purchase, and continued the same till the time of his re-conveyance to Ezra Sargeant, when he received payment for the land or his betterments upon it in a note signed by Jabez Sargeant and the plaintiff. But he also testified that his improvements were wholly upon the north side of William’s river, and the 100 acres now sued for lies on the opposite side. The plaintiff also gave in evidence an agreement sighed and sealed between himself and one Joseph Hoar, and witnessed by Jabez Sargeant, dated January 6, 1807, by which tire plaintiff agreed to sell, and the said Hoar to purchase, the said 100 acre tract at ‡ 3,00 per acre. The conveyance was to be made with all tire usual covenants,on or before tire 1st day of January, 1810, and the payments were to be completed by that time. This agreement reserved to the plaintiff tire privilege of erecting and supporting a mill dam upon the premises, and contained an express licence to Hoar to take immediate possession under the contract. The plaintiff also gave in evidence tire following deeds of the said 100 acre tract to wit: from Joseph Hoar to his son Daniel B. Hoar dated May 13, 1816, from Daniel B. Hoar to JosiahKibling datedOct. 2,1817, and from Josiah Kibling to the defendant dated June 10, 1818. He also gave in evidence the following deeds of the 20 acre tract in question, to wit: from Joseph Hoar to Silas Jones dated January 18, 1816, and from Silas Jones to the defendant,dated April 17, 1818. The plaintiff called the said Joseph Hoar as a witness, who testified, that at the time of entering into tire aforesaid contract with the plaintiff the said 100 acre tract was entirely wild, that the agreement was drawn by Jabez Sargeant and left in his ‘ possession, that upon the execution of the instrument the witness took immediate possession of the land and commenced permanent improvements thereon, which have been continued and extended by himself and those claiming under him, including the defendant, ever since; — that the several conveyances above mentioned, passing the land from himself to the defendant, were executed at the dates aforesaid, <each grantee taking actual possession under his deed, and that his son Daniel B. Hoar was acquainted with the said agreement in writing between die witness and the plaintiff, but that he had no reason to believe that Sibling or the defendant had any notice of it at the time of dieir respective purchases. He also testified that until he executed die deed to his son, he had occupied the land claiming it as his own.
    As to the 20 acre tract in question this witness testified, that the plaintiff erected a saw mill on this tract, which had run down about two years before die witness entered into the contract for the purchase of the 100 acre tract, and that a son of Jabez Sar-gecmicarried away the mill irons; that some dine after the making the written contract aforesaid, and when die plaintiff was about to remove to Canada, he remarked to the witness that a certain tract of about 40 acres, adjoining the 100 acres aforesaid,and including the 20 acres in question, ought to belong to the ■witness’ farm, and told the witness to take possession of it, and when he could pay for it, he the plaintiff would give him a, deed of it — that die witness occasionally took timber therefrom till he deeded die 20 acres to Jones as above mentioned.
    This witness also testified that he paid die plaintiff in labor and in a horse about seventy dollars, in part payment for die two tracts aforesaid. There was no evidence tiiat Jones, Killing or die defendant at the time of dieir respective purchases had notice tiiat die plaintiff had a claim to any of the land in question ; and no tide adverse to that of the parties of record was shown to exist or to be asserted by any person. The plaintiff here rested his case; and the court inclining to decide tiiat he had not made a sufficient case upon which to recover, he submitted to a nonsuit, witii leave to except to die opinion of the court and move to set the nonsuit aside.
    
      Hutchinson and Marsh, for the plaintiff.
    1. The first question is whether the plaintiff shows a sufficient prior possession to entitle him to recover against a stranger.
    2. Whether such showing is good against die defendant claiming under another, who was put in possession by the plaintiff, defendant not knowing of the plaintiff’s claim.
    
      Under the first point it is proper to remark that it appears by the contract between the plaintiff and Joseph Hoar, and by the testimony of the latter, that he entered under tire plaintiff on the 100 acre lot, and under the written contract, 'and again by the testimony of the same witness, that he entered on the 20 acre l#hy virtue of a parole .contract with the plaintiff. The law is, therefore, clear that if Hoar did not perform the contract on his part,''-he is considered as holding under the plaintiff and cannot dispute his title ; but must yield up die possession to him of whom he received it, and die plaintiff may recover by virtue of his prior possession.
    Indeed, the possession of Hoar is the possession of the plaintiff, and if die statute has run, -it has run in favor of plaintiff, and his tide is complete.
    In 4 Johns. Rep. 230, Jackson vs .Rond — Where A went into possession under an agreement to purchase, and C afterwards look possession under an agreementwith A for the parchase, the possession of C was holden not to be adverse to the title of B.
    Defendant shows no tide, and plaintiff’s prior possession is good against a stranger to all tide.
    In 10 Johns. Rep. 338, Smith vs. LorriUard — It was decided that “It was not necessary that plaintiff should, in every case, show a possession of 20 years or a paper tide : but a possession for a less period will form a presumption of title sufficient to put die tenant on his defence.”
    Again, “A prior possession of less than 20 years under a claim or assertion of tide will prevail over a subsequent possession of less than 20 years, where no other evidence of title appears on either side.” S. C.
    “An acknowledgment by defendant that he went into possession under lessor of die plaintiff is-sufficient to enable the plaintiff to recover.” 3 Johns. Rep. '223, Jackson vs. Dobbin. — 4. Caine’s RepAM. — 7 Johns.Rep. 186.- — 10 Johns. Rep. 358¡S. P.
    
    These authorities seem sufficient to show that Hoar could not resist the plaintiff’s tide.
    Plaintiff claimed title by the act of contracting with Hoar for the sale of the land.
    
      We contend that defendant, claiming under one who held under tlie plaintiff, stands in the same relation and cannot resist his title.
    In 3 Johns. Rep. 499, Jackson vs. Scissam, it was said, an acknowledgment of one under whom defendant claims' that he came into possession under the plaintiff’s lessor,is conclusive evidence as to his tenancy.”
    In 2 T.R.5S, Davis vs .Pierce, it was decided tiiat“the declaration of tenants after their death, that a piece of land was parcel of the estate which they occupied, and proof that they exercised acts of ownership not resisted by contrary evidence, is decisive,” and this against a third person.
    So in 2 Johns. Rep.22, Jackson vs.Hazen,it was decided “that where the plaintiff hadbeen inpeaceable possession for three years and the defendant entered afterwards without colour of right, that such possession was sufficient to enable the plaintiff to recover in ejectment.
    In 2 Caine’s Rep.215 Jackson vs. Whitfo?-d,one claiming under another who held a lease from die plaintiff,cannot dispute his title.
    The court directed a nonsuit because die defendant did not know in what relation Hoar stood to die plaintiff — tiiat is — he did not know of the contract between Hoar and die plaintiff.— But it was his duty to have acquainted himself withjthe tide under which his vendor claimed, or to have secured himself widi proper covenants. It was not surely the duty of the plaintiff to have acquainted him with diese facts.
    The defendant, we tiiink, stands in die same and in no worse case than every man who purchases of another having no title.
    The opinion of the court in directing a nonsuit, 'we think was wrong, and hope it will be set aside.
    
      Washburn, for defendant. It is contended by die defendant, 1. That John Bowker, the plaintiff never had any title or possession of the demanded premises.
    2. Joseph Hoar could not be considered as holding the premises, as tenant to said Bowker, but in his own*right.
    3. A fortiori, SamuelWalker, jr., the defendant, who made an absolute purchase of the said premises, and paid the full value thereof, without any knowledge of the pretended claim of said Bowker, cannot be considered as holding the premises as tenant to said Bowker ; and therefore saidJBowker, who had no prior title or possession, cannot sustain an action of ejectment against him.
   Royce, J.

delivered the opinion of the Court.

The general question submitted is, whether the plaintiff at the trial, made out a case which, if lupcontradieted, and not at all weakened by evidence on the other side, would entitle him to recover. The original title to the premises in question does not appear.. Ezra Sargeant, having.a colour of title under Ranny's deed to a tract including these premises, sold 130 acres thereof to Timothy Thompson, who entered and made improvements upon that part of his purchase lying north of the stream called William's river; the part on the south side, and being the 100 acres now sued for, remaining entirely wild. A difficulty is here presented in determining how far this possession affected the 100 acres, because we are not informed by the case whether the whole purchase of Thompson was surveyed, or inclosed within visible lines or monuments. That he claimed the 100 acres is certainly to be inferred from his purchase and sale of the same. In 1803, Thompson re-conveyed to Ezra Sargeant, who immediately deeded to Jabez Sargeant the whole tract claimed under Ran-ny’s deed. Jabez Sargeant thus acquired a colour of title, and tire possession of Thompson, whatever it was. At tire same time a connexion of some sort is discovered between Jabez Sargeant and the plaintiff, in relation to this property; the plaintiff having joined with Sargeant in the note to Thompson, and erected a saw mill on the 20 acres in dispute, which was doubtless done with Sargeant's consent. Under these circumstances the agreement between the plaintiff and Joseph Hoar was concluded under their hands and seals in January, 1807. In this transaction the consent and co-operation of Sargeant are distinctly seen; he having drawn up and witnessed the contract, and consented to hold it for the benefit of the parties. He could never after this have interfered to the prejudice of Hoar in violation of that agreement;— The entry of Hoar was by express permission of the plaintiff under this agreement to purchase; and that he consideredhis possession as subject to the contract of purchase appears from the payments which he made. It follows in view of all this drat he could not have obliged the plaintiff to show a title to the land in an action for the possession. He could only fulfil his contract or surrender the possession. In saying this we do not go the whole extent of the cases cited for the plaintiff. The plaintiff must be equally entitled to recover against this defendant, unless his situation is different from that of Hoar. He is understood to have purchased in good faith for a valuable consideration, and without notice of any agreement or connexion between Hoar and the plaintiff. And hence it is contended that the agreement has no influence upon the property in the hands of the defendant, whatever it might have had while the possession remained with Hoar. It is certain, however, that the possession of Hoar is the main ground, if not the sole origin, of the defendant title ; and that possession was subservient to an acknowledged paramount right of the plaintiff. This being the character of the possession till within a few months of the defendant’s purchase, it is more than we can say, from what has yet appeared in the case, that in that short period its character was wholy changed.

Hutchinson and Marsh, for plaintiff.

Washburn, for defendant.

We are not to enquire whether the agreement could be rendered invalid by reason of fraud, since no such inference necessarily results from the facts now in the case; nor whether a question may exist for presuming it abandoned or discharged by the plaintiff, from a conscious inability to make the title which he had stipulated to give. No such ground is yet disclosed, and if it were, the jury and not die court should make the presumption. We therefore think that the nonsuit was improperly advised and that a new trial must be granted.

We have come to this result chiefly in reference to the larger tract demanded, and no opinion is expressed whether a new trial would be granted, were the 20 acres the only subject of dispute. New trial granted.

. Hutchinson, J. being of counsel in the cause did not sit in‘the trial. ,  