
    John Ward versus Willy Bartholomew.
    In a writ of entry* the want of an averment of seisin in the demandant is cured by a verdict that he was disseised, and he is entitled thereupon to be reseised of at least an estate of freehold.
    Where án individual, under a resolve of the legislature authorizing him to sell, by a quitclaim deed, land belonging to the Commonwealth, gave a deed in his own name as agent, and under his own seal, the deed was held valid.
    Held also, that he did not exceed his authority by warranting the land against ail persons claiming under the Commonwealth, that being no more than the legal effect of a sale.
    Held also, that it was not necessary to recite in the deed the particular acts which the resolve required to be performed in making the sale.
    A deed conveying all the lands belonging to the Commonwealth “ between the old west line of S. and the east line of M. W.” (adjoining towns,) is not void for uncertainty of description.
    A grant of land by the Commonwealth will pass its title, notwithstanding an adverse possession, the Commonwealth being incapable of being disseised.
    Successive disseisins do not aid one another in creating a title by possession. Thus where a disseisor conveys part of the land, and the grantee, under color of the deed, enters upon the whole, the1 possession of the first disseisor will not avail the grantee, in regard to the part not embraced by the deed.
    
      This was a writ of entry, in which the demandant claimed an undivided third part of a certain tract of land m Sheffield, “ whereof the tenant unjustly, &c. disseised the demandant, within thirty years.” The tenant pleaded non disseisivit.
    
    At the trial, before Wilde J., the demandant offered in evidence a resolve of the legislature, passed June 11, 1824, authorizing Jonathan Allen to sell at public vendue, giving thirty days’ notice of the intended sale, all the land belonging to the Commonwealth in the towns of Sheffield and Mount Washington, and to make and execute deeds of release to the purchasers, on their giving good and sufficient security to the treasurer of the Commonwealth for the purchase money, payable at such times as Allen should think advisable, with inter est.
    Under this resolve Allen sold and conveyed the premises described in the writ, to the demandant and two others, by a deed made and executed by him as agent of the Commonwealth. The tenant objected to the admission of the deed in evidence, because it was not given, as he contended, in pursuance of the resolve, not being in the name of the Commonwealth, and also because it was void for uncertainty in the description of the premises ; but these objections were overruled.
    The tenant then offered evidence tending to show, that at the time when the deed was executed, he was in possession of a part of the demanded premises, claiming the same as his own, and having the same fenced and enclosed, and thereupon contended that for this reason nothing passed by the deed to the demandant. This objection was overruled.
    . The tenant then offered evidence tending to show that he, and those under whom he claimed, had had possession of part of the demanded premises for thirty-five years ; but it appeared that the tenant himself had not been in possession so long as thirty years before the commencement of this action ; and on producing his title deed, it became a question whether it included any part of the demanded premises ; and it being a question of bounds, the evidence relating to it was left to the jury, and they found that the deed to the tenant did not extend so far as to include any part of the demanded premises, and they returned a verdict for the demandant. On this last point the jury were instructed, that the tenant could not claim any title or possession in his grantor beyond the limits described in his deed above mentioned, and if his grantor had possession beyond those limits, it was immaterial in this case, if they should find that the grant to the tenant did not include any part of the demanded premises.
    
      Sept. 18th 1827
    If the foregoing decisions were correct, the verdict was to ?:and ; but otherwise a new trial was to be granted.
    The tenants moved in arrest of judgment, because the decaration did not allege any seisin in the demandant or his ancestor.
    
      Dwight and Barnard, in support of this motion,
    referred to 1 Saund. 221 ; Rushton v. Aspinall, 2 Doug. 679; 6 Dane’s Abr. 83, 274; Green v. Liter, 8 Cranch, 229. It is true the jury have found that the demandant was disseised, but whether he was seised of an estate in fee or of freehold, is not determined by the verdict.
    In regard to the points made at the trial, they insisted that the deed from Allen was void, because the resolve had not been strictly pursued. Taylor v. Horde, 1 Burr. 120; Knox v. Jenks, 7 Mass. 488. The effective words of conveyance are in the name of Allen as agent of the Commonwealth, in stead of being in the name of the Commonwealth. Fowler v. Shearer, 7 Mass. R. 14. The seal of the Commonwealth should have been affixed to the deed. Jacob’s Law Diet. tit. Keeper of the Seals. The resolve authorizes a release only, but the deed is a grant, with a covenant of warranty in the name of the Commonwealth, against the lawful claims of any person claiming under the Commonwealth. Nixon v. Hyserott, 5 Johns. R. 58; Gibson v. Colt, 7 Johns. R. 390. The deed does not recite all the particulars required to be done by the agent, and is therefore void. It is void too for uncertainty in the description. It purports to convey, m general terms, all the lands belonging to the Commonwealth between certain lines, namely, the old west line of Sheffield and the east line of Mount Washington, containing 400 acres, it not being pretended that all the lands between those lines belonged to the Commonwealth. Shep. Touch. 345 ; 
      Worthington v. Hylyer, 4 Mass. R. 196; Jackson v. Delancy, 13 Johns. R. 537; Jackson v. Rosevelt, ibid. 97.
    The evidence offered by the tenant to show that he was in possession of part of the demanded premises, claiming the same as his own, so that that part did not pass by the deed to the demandant, was improperly rejected. 5 Mass. R. 577 Mayo v. Libby, 12 Mass. R. 343; Jackson v. Joy, 9 Johns. R. 102. If the Commonwealth cannot be disseised, it may be ousted by intrusion, and some legal process is necessary to reinstate it in the possession ; and if, therefore, the tenon* was in the actual possession, the deed was inoperative. St. 1791, c. 13, § 2, 3 ; 6 Dane’s Abr. 81 ; St. 9 Geo. 3, c 16 ; IN. R. Laws of New York, 184.
    The instruction to the jury was incorrect, whether the deed to the tenant did or did not include any part of the demanded premises ; for an uninterrupted adverse possession for thirty years, whether by one or by several persons, would be a bar to the action. Fanning v. Willcox, 3 Day, 258.
    
      C. A. Dewey, for the demandant,
    to show that the defect m the declaration was cured by the verdict, cited 6 Dane’s Abr. 274; Kingsley v. Bill, 9 Mass. R. 199; Spear v. Bicknell, 5 Mass. R. 132; 1 Saund. 228a, note 1; Booden v. Ellis, 7 Mass. R. 507.
    He admitted that the deed from Allen as agent, and under his own seal, might have been void, had he been the agent of an individual, though there were authorities to the contra ry ; Wilks v. Back, 2 East, 142; but the case is different where the Commonwealth is the grantor. This is a statute conveyance, and it is made in the manner usually pursued in this Commonwealth in regard to public lands. The land passes by the resolve, and the authority given to Allen was merely to designate by deed the person who was to take M'Millan v. Eastman, 4 Mass. R. 378; Commonwealth v. Heirs of André, 3 Pick. 224; Lambert v. Carr, 9 Mass. R. 185; Mayo v. Libby, 12 Mass. R. 339; Springfield v. Miller, ibid. 415; Codman v. Winslow, 10 Mass. R. 146. The covenant of warranty against all persons claiming under the Commonwealth, is according to the usual form of quitclaim deeds in this country. It does not amount to a warran ly. But if the agent, in inserting this covenant, exceeded his authority, the objection cannot be made by a stranger. Knox v. Jenks, 7 Mass. R. 488.
    
      Sept. 21st, 1827
   The other objections are answered in the opinion of the Court.

Per Curiam.

As to the motion in arrest of judgment, the count on which the verdict is returned is remarkably defective ; and upon general demurrer the defect would have been fatal. We are of opinion however that it is cured by the verdict, upon the liberal ground lately adopted by courts of law, in order to prevent expense and delay after a trial of the merits of a case. The principle stated by Chitty, and Williams, in his notes to Saunders, is, that whenever any essential facts are imperfectly stated or even wholly omitted in a declaration, if the verdict be such as would not, under the direction of a court, have been returned without proof of the facts so imperfectly stated or omitted, it shall be presumed that such proof was given, and judgment may be rendered on the verdict. This declaration, though it alleges no seisin in the demandant, avers that he was disseised by the tenant. Now it is plain that such a verdict could not have been returned without proof of a seisin by the demandant, for he could not be disseised without having been seised ; and no court could have allowed, nor could any jury have agreed in that verdict, unless there was sufficient evidence of the fact without proof of which the demandant could not have advanced a step on the trial. It is true that a seisin only can be inferred from the declaration, plea and verdict, and that the case is still left destitute of any averment or even implication of the nature and extent of the seisin; but if seised and disseised, the demandant is entitled to judgment, and it may be a subject of future inquiry to what extent this judgment will affirm his title ; if only to a freehold, still he is entitled to be reseised.

This rule, by which defects resulting from carelessness are passed over with impunity, may have a tendency to encourage laxity of practice ; and this would be a subject of regret, were it not that the adverse party, instead of arresting the progress of the suit in its earliest stages, and thus saving much expense and trouble, lies by until all the expense of a trial lias been incurred, and after the merits of the controversy have been settled, would overthrow the whole proceedings upon some point, which, after the trial, can be nothing to him but mere matter of form. It is for this reason that the courts will, as stated by Chitty, allow of almost any declaration after a verdict. There must have been singular inattention in the drawing of this declaration, for even in the first count, which is now out of the case, a naked seisin only is averred, without any notice of the estate of which the demandant was seised. This also would have been bad on special, and perhaps on general demurrer.

It is objected that the deed of Allen is void, because it is not in the name of the Commonwealth, and because the seal of the Commonwealth is not affixed. And the authorities are strong, that a conveyance of land by an individual must be by the principal, and not by the agent. But there is a difference between grants of an individual and those of the public. The government may grant without any deed ; as lands in the District of Maine were frequently granted by a resolve. Since the adoption of the constitution, the committee on eastern lands have given deeds, setting forth their authority and affixing their own seals ; and these deeds have been considered valid. The seal of the Commonwealth has been used chiefly for political purposes, and not for mere grants of land. This practice having continued sixty years, and perhaps longer, we cannot say that it is ineffectual. In fact the land passes by the resolve, rather than by the deed ; only it is necessary to have some conduit to convey the title to the purchaser. We are satisfied the practice has been such, and it being the light of the government to establish its own forms, these objections to the deed of Allen cannot prevail.

Next, it is said that this is a deed of grant with a covenant, and not a deed of quitclaim. It is clear that if the agent transcends his authority, the deed may be avoided in some respects. But to sell is not to covenant, and the warranty against persons claiming under the Commonwealth is only the effect of the sale without any covenant. We think then, that in regard to this covenant, there is no exceeding of authority.

Another objection is made, that the deed does not recite various particulars, mentioned in the resolve, as that the sale was by auction, &c. It was necessary that these facts should take place, but not necessary to recite them. The recital might be evidence after a lapse of years, but it would be only evidence.

The deed is also said to be void for uncertainty in the de scription of the land ; but we find no such uncertainty. The boundary lines are definitely stated. The objection is rather that the words of the resolve are not used ; but if the words in the deed have the same meaning, that is sufficient.

Further, it is said that the tenant was in possession, and the deed was therefore ineffectual. The general principle is, that a person held out of possession cannot pass a title, as it would tend to excite lawsuits, but we have always understood that this principle does not apply to the government. The very circumstance, that in England and New York, statutes have been recently passed to limit the right of the public, shows it. At the argument it was suggested that we have a similar statute restraining such right, after an adverse possession of thirty years. Whether such a statute exists or not, is immaterial; for the facts in the case show a possession of less than thirty years. But the tenant says that his own possession and that of the first disseisor have continued for thirty-five years. To connect them he must show that he holds under the first disseisor. Successive disseisins do not aid one another. The jury have found, that the extent of the land held for thirty-five years by a continuous title to the tenant and his grantor, does not cover the demanded premises. Nothing being sold to the tenant except what was included in the boundaries stated in his deed, he has no right by an entry under the deed to the excess which was in the possession of his grantor. If then there were a statute barring the light of the government after an adverse possession of thirty years, il would not avail the tenant. But after the investigation which has been made by the counsel and by the Court, it seems doubtful whether any such statute exists.

Judgment according to verdict. 
      
       See 1 Chitty on PI. (6th Am. ed.) 712, 713 et seq.
      
      See Elliott v. Heath, 6 N. Hampsh. R. 428.
     
      
       See Copeland v. Mercantile Ins. Co., ante, 203, note 2.
     
      
       See 2 Kent’s Comm. (3d ed.) 632,633; Perry v. Hyde, 10 Connect. R. 329
     
      
       See Thompson v. Carr, 5 N. Hampsh. R. 515, 516; Cofran v. Cochran, 5 N. Hampsh. R. 458.
     
      
       See Sargent v. Simpson, 8 Greenl. 148.
     
      
       See Brown v. Bellows, 4 Pick. (2nd ed.) 190, note 2; Jackson v. Moore, 6 Cowen, 706, 720, note a.
      
     
      
       See Brinley v. Whiting, 5 Pick. (2nd ed.) 353, note 1.
     
      
       See Hill v. Dyer, 3 Greenl 441; Kinsell v. Daggett, 2 Fairfield, 317.
     