
    Moses Lyman vs. Obed M. Humphrey.
    A tract of land, which was a part of the ancient undivided lands belonging to the original proprietors of a town and to those deriving title from them, was regularly surveyed and set out by the proprietors’ committee to H, on the right of a certain ancient proprietor which H claimed to have inherited. The same tract was afterwards regularly surveyed and set out by the committee to L, who held the rights of a certain other ancient proprietor. In an action of ejectment brought by L against the grantee of H, to recover possession of the tract, and in which the defendant set up his prior title under the survey of the committee, it was held that the plaintiff might go behind the survey to H, and show that the ancient proprietor, whose rights H had claimed, had previously to the survey conveyed away to other parties all his interest in the undivided lands, and that H, at the time of the survey to him, had no interest whatever in the lands.
    Ejectment. The defendant pleaded the general issue, with notice of a claim of title. The demanded premises were originally a part of the common and undivided lands of the town of Norfolk. The plaintiff alleged in his declaration that, at the time of the disseizin, he was seized of the land in his own right in fee, and on the trial to the jury claimed that on the 27th day of December, 1819, the tract in question *was regularly surveyed and set out to him, by the [ *323 ] committee of the proprietors, under two original proprietors’ rights, partly in his own right and partly in the right of Moses Lyman deceased, of whom he was executor, and gave in evidence the survey and certificate of the committee properly executed and recorded. The defendant objected to this evidence, but the court admitted it. The defendant then offered in evidence, in support of his title, a like survey and certificate of the proprietors’ committee, duly executed and recorded, embracing the tract in question, to Eliakim M. Humphrey, dated April 29, 1830, with a deed of the land from the said Eliakim to himself, dated December 16, 1830. In reply to this evidence of the defendant, and for the purpose of showing that the survey and setting out of the land by the committee to the said Eliakim conferred no title upon him, the plaintiff offered in evidence two deeds of Noah Humphrey, under whose claim as an original proprietor the said Eliakim Humphrey claimed, executed in the years 1757 and 1759, conveying to other parties all his right in the undivided lands of the town. To the admission of these deeds the defendant objected, on the ground that the plaintiff could not go behind the survey and certificate of the committee; and the court sustained the objection and excluded the evidence. The survey to the said Eliakim was in the following form :
    “ Surveyed and laid out to Eliakim M. Humphrey, on the original right of Noath Humphrey, the following described land, situated in the southerly part of Norfolk, bounded, &c. * * * Dated at Norfolk, "the 29th day of April, A. D. 1830.
    Michael F. Mills,
    Amos Pettibone,
    Proprietors’ Committee.
    Joseph IIiggs, Surveyor.
    “ Received for record the 29th day of April, 1830, and truly recorded by me. Michael F. Mills, Proprietors’ Clerk.” The jury having returned a verdict for the defendants, the plaintiff moved for a new trial.
    
      Woodruff and Hollister, in support of the motion. [ *324 ] 1. The defendant, in support of his title, offered in evidence *the survey to Eiiakim M. Humphrey, and the deed of Eliakim to him. From these it appears that the land was surveyed and laid out to Eliakim, on the original right of Noah Humphrey. In reply, the plaintiff offered to show that the defendant had never acquired the right of Noah Humphrey and so had no right to the land laid out; and proposed to trace the history of the title from Noah Humphrey down; and to commence, he offered to show, by the two deeds of 1757 and 1759, that Noah Humphrey conveyed his right in another direction. These deeds are clearly links in the chain. How much they proved is not the question. It was of course competent for us to prove title in another; and if so, it could not have been more properly done than by taking up the title of Noah Humphrey and tracing it regularly down to the time of trial. But the court held that it was not competent for us to show that, at the time of the survey, Eliakim M. Humphrey had no title to, or interest in, the common and undivided lands in Norfolk, and consequently no right to the survey, and that we could not go back of the survey. The doctrine of the decision is simply this; if a stranger, with no title whatever, procures the proprietors’ committee to survey and lay out to him undivided lands, the title, ipso facto, is vested in him, and all the other proprietors are concluded thereby. But we say that the survey was not a deed, and passed no title. The proprietors’ committee as such had no power to pass a title. It was their duty to divide the land among the owners, not to convey to a stranger. They do not convey by their surveys, nor pretend to convey. They only locate the interest which has been previously regularly conveyed.
    2. But it was claimed in the court below, that the act of 1881 (Rev. Stat., tit. 29, sec. 34,) rendered the survey a valid one. But this act merely validates “ grants and conveyances ” by such committees, and was not intended to apply to a survey like this, which is not a grant or conveyance but a mere location of a previous right.
    3. There is no estoppel in the case. If there is, it is by the survey as a deed or writing. But there is no admission *in the survey that Eliakim M. Humphrey is the [ *325 ] owner of Noah Humphrey’s original right. A denial of such ownership is not denying that which is stated in the survey. The committee were not selling land' to him. They made no assertions to induce him to purchase, as does the covenantor in a warrantee deed. They took no money from him. He claimed to own Noah Humphrey’s right when in fact he did not. The committee did not know, nor did it concern them, whether he owned it or not. They surveyed and set out to him undivided land, because he claimed to be entitled to it. Neither they nor the other proprietors through them made any assertion as to title.
    
      Graves and Peet, contra.
    1. The survey offered in evidence by the plaintiff was not admissible under the declaration to prove title. The plaintiff in his declaratkn alleges an absolute estate in fee in himself alone. The survey, if it proves anything, proves that the plaintiff and the estate of Moses Lyman deceased were jointly seized in fee ” of the premises. There is therefore a fatal variance between the proof offered and the allegations of the declaration. This being the case it matters not whether the court erred in another part of the case, for if this court can see from the record that the plaintiff can not sustain his action if a new trial should be granted, it will deny the motion.
    2. The decision of the court in excluding the evidence offered by the plaintiff was correct. Both parties claimed title under the original proprietors, but our survey was made in 1830 and the plaintiff’s in 1849. The plaintiff claiming under a-subse-. querit survey from the same proprietors, is estopped from disputing our title and from denying any fact recited in our survey. •The proprietors, by their survey to our grantor, expressly recognize his right in the lands, and, having done this, it is not competent for them, or any person holding under them by a later deed or survey, to deny or avoid our title except for fraud. The evidence was also properly excluded because the [ *326 ] legislature, by its enactment in 1831, confirmed *our title. Rev. Stat., tit. 29, sec 34. See also Stow v. Wyse, 7 Conn., 214; Brown v. Wheeler, 17 id., 345; and Kinney v. Farnsworth, id., 355.
   Ellsworth, J.

The plaintiff introduced, as evidence of his title to the portion of common land in Norfolk described in the declaration, a survey and lay-out to himself, partly on his own right and partly on the right of Moses Lyman, deceased, to whom he was executor -; which proceeding was in the common form, under the hands of the proprietors’ committee, and duly recorded in the public records.

• To the admission of this evidence the motion states that the defendant’s counsel objected, but for what particular reason it does not appear; and hence, as the objection is so general, we can not take notice of it—the rule requiring that in motions for new trials the precise objection taken shall be stated, together with the opinion expressed thereon by the court. But we would say that we have not discovered any valid ground for the objection, in the suggestion of a variance between the title stated in the declaration and that proved on the trial.

Assuming then, as we do, that the plaintiff made out a prima facie case, (and if he did not, the defendant should, have moved for a non-suit, j we look further to see if any error has intervened in the later proceedings of the court.

The plaintiff having introduced his proof and rested,' the defendant had a right to disprove the prima facie title of the plaintiff, or to prove an earlier and better title in himself. He chose the latter, and to this end read to the jury, without objection, a similar survey and lay-out of the same land, to one Eliakim M. Humphrey, upon the right of Noah Humphrey, of an earlier date, together with a deed from said Eliakim to himself. Now, to disprove this title, which seemed to be a prior one, the plaintiff attacked it in its very origin, and offered in evidence deéds from said Noah, of all his right in the undivided lands, partly to Jonathan Pettibone and partly to Samuel Barber, of earlier dates by some years than the survey and lay-out obtained by said Eliakim ; from *which the plaintiff [ *327 ] claimed that it was apparent that the defendant did not derive any title from the ancient right of said Noah, and so had no title of which he could avail himself to defeat the plaintiff’s action. To this the defendant objected, and the evidence was ruled out; which ruling gives rise to the only real question made in the case. We discover no well founded objection to this evidence, and are satisfied that the court erred in rejecting it. If Noah Humphrey had no right, nothing to justify Eliakim in causing the survey and lay-out to be made to him on the supposed right of Noah Humphrey, (as he had not, if Noah had made an earlier conveyance of it to Pettibone and Barber,) then Eliakim acquired no title, and the defendant got none from him by his deed. One way of showing this was to introduce the deeds to said Pettibone and Barber. They should then have been received.

The defendant’s counsel insist, and this seems to have been the idea of the judge below, that the plaintiff could not be allowed to question the supposed survey and lay-out to said Eliakim, because, as they claim, the committee of the proprietors of this land in fact made the survey and lay-out to him, and their act operates as an estoppel upon the plaintiff. But how is this ? If Noah Humphrey had no right in the common land, Eliakim’s survey and lay-out did not give him one. He was a mere intruder; he had no business there at all; and the committee could not invest him with the -rights which belonged to other persons. There are here none of the elements of an estoppel. The committee were authorized only to survey and lay out to the true proprietors; nor were they clothed with power to decide who were or who were not such. No judicial power was given them.

Something'has been said about the insufficiency of the survey and lay-out in itself, to confer a perfect legal title upon the said Eliakim; but on the other hand it is said that this is the customary mode in such cases, and that deeds of conveyance from the committee to the proprietors are not usual or necessary. We have not thought it important to pursue this inquiry, as affecting the decision of the case, because we can dispose of the case without doing so ; and were we to rest our deci- [ *328 ] *sion upon this point, might perhaps find, that in this particular both parties are in the same position, for both claim under a like survey and lay-out by the proprietors’ committee, without more; though the motion does not show that this objection to the plaintiff’s title was made in the court below.

We are of the opinion that a new trial should be granted.

In this opinion the other judges concurred.

New trial advised.  