
    Jonas Stearns vs. John G. Hendersass.
    An adverse and exclusive possession of land for a period of twenty years is a good bar to a writ of entry to recover the same, although the demandant's title may have been derived through mesne conveyances from the tenant; nor is the tenant estopped, by his covenants of warranty in the deed to his original grantee, from setting up a subsequent title acquired by disseisin.
    In an action for the recovery of land, the defence to which is an adverse and exclusive possession for a period sufficient to constitute a bar under the statutes of this commonwealth, the declarations of a grantee of the premises, made more than twenty years before the commencement of the action, and subsequently to the date of his deed, that the entire title of the premises, at the time of such declarations, was in the tenant in such action, are competent evidence, as bearing upon the question of adverse possession in the tenant under a claim of right; but the declarations of such grantee, made after his insolvency and the conveyance of his interest in the premises to an assignee, and after twenty years’ adverse possession by the tenant, are inadmissible.
    This was a writ of entry, wherein Jonas Stearns demands of John G. Hendersass certain lands situated in Williams-town in this county. The demandant counting on his lawful seisin in fee within twenty years, and disseisin by Hendersass. The action was tried in this court before Gushing, J., who reported it as follows : —
    The demandant claimed to derive title through the following conveyances, namely: 1. A deed of the demanded premises from Hendersass, the tenant, to one Harvey Blake, in the common form of warranty, duly executed and acknowledged on the 21st day of April, 1826, and recorded on the 14th of October, 1843; 2. An assignment by Franklin O. Sayles, Esquire, a master in chancery in and for this county, to James T. Robinson, as assignee of Harvey Blake, insolvent debtor, of the property of Blake, made on the 20th day of March, 1848, and duly recorded; 3. A deed of the premises from Robinson to the demandant, dated December 20, 1849, and duly recorded.
    The tenant proposed to introduce evidence to the following effect, namely: —
    1. That the tenant Hendersass had remained in the actual possession and sole occupation of the premises, from the time of the execution of his deed of the 21st of April, 1826, to the present time.
    2. That the possession of Hendersass, during that period, was an adverse one, of such exclusive character, and with such notorious claim of right, as to have revested the title in Hendersass, as against Blake.
    3. That, at the time of the conveyance from the master in chancery to Robinson, and from Robinson to the demandant, there was a subsisting disseisin of Blake by Hendersass.
    To this evidence the demandant objected, on the assumption that a grantor cannot by law acquire title by possession, as against his grantee ; but I was of opinion that it might be possible in law for such facts to exist, of continuous adverse possession and notorious claim of right, on the part of a grantor, for the period of twenty years, as to constitute a legal ouster and disseisin of the grantee, and revest the title in the grantor ; and I therefore permitted the tenant to introduce the proposed evidence. To which ruling the demandant objected.
    To rebut this evidence of the tenant, the demandant, in the first place, offered evidence of an alleged pro formd entry by Robinson on the premises, on the 20th day of December, 1849, the date of his deed to Stearns, and a livery of seisin of the premises by words to Stearns; but without any oustei of Hendersass, who still remained in possession, and who was not present at the time of such nominal entry and livery of seisin. I admitted this evidence, but ruled that such pro formd entry by Robinson, without actual ouster of Hender sass, even if of any effect whatever under the general facts of the case, (which was doubtful,) yet was, at any rate, of no avail, if there was, at the time of the assignment by the master in chancery, a subsisting disseisin of Blake by Hendersass, and had been for the period of twenty years. To which ruling the demandant excepted.
    The demandant then offered the deposition of Harvey Blake, made the 28th day of August, 1852, as counter evidence on the question of possession. I admitted such parts of the deposition as appeared to me lawful, but ruled upon it, among other things, that it was not competent for the de-mandant to prove or introduce the declarations of Blake, made after his insolvency, and the expiration of the alleged twenty years adverse possession by Hendersass. To this ruling the demandant excepted.
    Evidence was introduced by the tenant and submitted to the jury, impeaching the credibility of Blake.
    Among the facts offered in proof by the tenant, were sundry declarations of Blake, made in June, 1826, to the effect that the entire title of the premises, at the time of the declarations, was in Hendersass, and expressly disavowing any title in himself. This evidence I ruled to be competent, to which ruling the demandant excepted.
    I instructed the jury as follows, namely : —
    1. The chain of conveyances, from Hendersass to Blake, and from Sayles, through Robinson, to the demandant Stearns, constitutes a good primd facie title in the demandant; but as the demandant must prevail,' if at all, on the strength of his own title, it is competent for the tenant to show, if he can, a defect of title, or of right to convey, somewhere, in the series of conveyances, and subsequent to the execution and delivery of his own deed.
    2. The master in chancery could assign to Robinson the estate of Blake, whatever it was, and no more.
    3. As between Hendersass and Blake, or any persons claiming under Blake, the deed of Hendersass, upon the evidence in the case, and for the purposes of the trial, is to be taken as, at the time of its execution, vesting the titlé in Blake.
    4. That, if the tenant proposes to disprove the present title of Blake, or those claiming under him, and to disprove it by proof of disseisin and adverse possession for twenty years, then the law applicable to this part of the case is as follows, namely: —
    1. The deed of a disseisee, the disseisin still subsisting is inoperative to convey title.
    2. To constitute a disseisin, actual force is not necessary; but continuous, open, and exclusive possession, accompanied with acts of ownership manifesting the intention to hold the whole estate, and adverse to the true owner, is sufficient. Yet, an ouster or disseisin is not to be presumed from the mere fact of sole possession, although it may be proved by such possession, accompanied with a notorious claim of exclusive right.
    In this view of the law, I submitted the case to the jury, directing them to pass upon the facts proved, and, if they should be satisfied, on consideration of the whole of the evidence, that it established such disseisin of Blake by Hender-sass as above defined, and such adverse possession of the premises by the latter for twenty years, with notorious claim of exclusive right on his part, then to find a verdict for the tenant; but otherwise, for the demandant.
    The jury found a verdict for the tenant.
    If the court are of opinion that any of these rulings or instructions were wrong, the verdict is to be set aside and a new trial granted; if not, judgment is to be entered on the verdict.
    
      J. T. Robinson, (with whom was T. Robinson,) for the de-mandant.
    A grantor cannot set up, against his warranty deed to the grantee, a subsequently acquired title by possession; 1, because it would be impeaching and overthrowing his own deed, which he is estopped from doing; 2, because the law of estoppel and rebutter, to avoid circuity of actions, interposes and rebuts and bars his right. Wade v. Lindsey, 6 Met. 407; Lamb v Clark, 5 Pick. 193 ; Somes v. Skinner, 3 Pick. 52, 61.
    A title by possession does not necessarily rest upon a presumption of a grant. Stearns on Real Actions, 238.
    The admission of the declarations of.Blake, the grantee, was improper: 1, because it is evidence offered by the grantor tending to invalidate his own deed; 2, because it is in violation of the rule which excludes parol evidence to affect written instruments.
    The declarations of Blake were irrelevant.
    
      W Porter, for the tenant,
    cited Rev. Sts. c. 119, § 1; Parker v. Proprietors of Locks and Cernáis, 3 Met. 91; Sumner v. Stearns, 6 Met. 337; Chwrch in Brattle Square v. Bullcvrd, 2 Met. 363.
   Dewey, J.

The demandant derives title under a conveyance from the tenant, of date of April 2, 1826, to Harvey Blake, and a conveyance by the assignee of the grantee, Blake, who was authorized to convey all his right and title in the demanded premises.

The documentary evidence establishes a good title in Blake, the insolvent, in April, 1826, and the further question is, whether such title has been defeated or lost.

The tenant, in his defence, relies upon a subsequent title acquired by disseisin. To sustain this, he shows those acts of open, notorious, exclusive, adverse possession, for a period more than twenty years, which would be amply sufficient, in ordinary cases, to establish such adverse possession as, under our statutes, would bar a writ of entry to recover the same.

It is then insisted by the demandant, that, from the peculiar relation in which the tenant stands as to this title, he cannot set up the defence of an adverse possession, to defeat the same. In other words, that, having been the grantor of the premises to Blake, in 1826, he is estopped from denying the title of Blake or those claiming under him.

The first error of this position or ground of estoppel is, that it assumes what is not in fact true. The proposed defence does not impeach the deed to Blake. It admits its full force and effect as a valid deed. It concedes that, at its date, a good title passed to the grantee by virtue of it. The whole foundation of the defence rests upon an after-acquired title by the tenant, or subsequent acts, devesting the grantee of his interest in the premises. Full effect is given to the deed of the tenant to Blake, when it is held to vest the absolute title in Blake at its delivery, and that it estops the tenant from setting up any other title as then held adversely. The grantor, in such ease, may show a subsequently acquired title from his grantee, and it is no answer to an alleged disseisin, or a bar by more than twenty years adverse possession, that the disseisor, previous to his entry and the commencement of his adverse possession, fully acknowledged the title of the disseisee. Such was the case of Sumner v. Stevens, 6 Met. 337; Barker v. Salmon, 2 Met. 32.

All that is necessary to be shown is an adverse and exclusive possession of twenty years, and this being shown, constitutes a good defence to the action. The act, in such a case as the present, must be clear and unequivocal, as a possession claiming title adverse to the true owner, but if shown, it is a good bar to an action by him who has only a good paper title.

Secondly, it is urged that the covenants of warranty in the deed of the tenant to Blake, estop him from setting up this defence, and that they may be relied on as a rebutter, to avoid circuity of action.

The principle of rebutter is one of frequent application, and, in proper cases, is to be allowed as a good bar.

Thus if A. by his deed conveys to B. land, with covenants of warranty, not having in fact the title, but subsequently acquires the title, such subsequently acquired title enures to the benefit of B., the grantee, by reason of the covenants of warranty of A.

But it will readily be perceived that the foundation of this rule rests upon the fact that the party thus conveying with warranty had not the title he professed to convey, and was liable therefor on his warranty. But such was not the case here. It was a good title that was conveyed, and there was no breach of any covenant, and, of course, no ground for estoppel against the tenant by reason of his covenant with warranty.

2. As to the objection to the admission of the declarations of Blake, in June, 1826, that they were inadmissible because they tend to invalidate the deed under which he then held, and for the further reason, that their admission is in violation of the rule which excludes parol testimony offered to contradict written documents, these grounds are, in the opinion of the court, untenable. The declarations of Blake, offered in evidence, apply to a period after the making of the deed to him. The title may have been in him at the date of the deed, and yet it may be true that, at the date of these admissions, three months after, he had relinquished all claim, and yielded to the tenant, disavowing any title in himself. It was certainly competent evidence as bearing upon the question of adverse possession in the tenant, under a claim of right. It tended to establish such adverse possession with the knowledge of Blake, and to show his acquiescence in such adverse claim.

3. The further ruling of the court, excluding the declarations of Blake, after twenty years adverse possession, and after he had become the subject of proceedings in insolvency, and his interest passed to an assignee, was also correct.

The result is, that all the exceptions are overruled.

Judgment for the tenant.  