
    James Thomas & al. vs. George W. Pickering & als.
    
    D., being the owner of five-eighths of an original settler’s right in a two hundred and twenty-five acre lot in Bangor, in 1798, by deed of warranty conveyed to 11. one acre thereof, describing it particularly by metes and bounds. In 1801 R. conveyed the same acre by the same description to H.; and H. in 1822, conveyed the same, in a large number of lots, to the respondents, or to others under whom they claim. All these deeds were recorded immediately after they were given. In 3800 D. made a deed to the petitioner, T., describing the whole 225 aero lot, and then saying, “ of which only five-eighths are the property of said D, and are hereby conveyed, with the exceptions of” three pieces described, containing in the whole about twelve acres, one of which pieces was the acre conveyed to R., and then adding, <{ which exceptions are made out of the five-eighths conveyed, as aforesaid.” In 1803, T. and the owners of the three-eighths of the whole lot, made a partition of all the land, but the acre and the other two excepted pieces, in which partition the owners of the three-eighths had assigned to them their full share in the whole of the 22o acre lot. T. released to the owners of the three-eighths, his interest in the land assigned to them, and they released to him their three-eighths in all the residue. In 1802, a committee authorized by a resolve of the legislature of the Commonwealth of Massachusetts, conveyed the lot to the heirs of the first settler. Soon after H. received and recorded his deed, he entered into the occupation of a part of the acre, and he and his grantees continued the occupation to the present time, covering the principal part of it within the last twelve years With buildings. During a portion of this time T. acted as the agent of II. in leasing the land. In 1834, T. entered upon the land, and instituted this process of partition. It was held:
    
    That by the deed from D. to T. the tohole of the excepted pieces was reserved out of the five-eighth parts, and was to be considered, as so much received of the interest to be assigned to those shares, when partition should be made :
    That the effect of the deeds of release was but to make partition of the 225 acre lot:
    That T., having taken a deed from D. conveying kirn only so in lick as remained of the five-eighths after deducting therefrom the whole of the excepted pieces* acquired by the deed of release, made on the partition, no title in himself in the three-eighths of those pieces:
    And that the deed from the State did not vary the rights of those claiming under the first settler, further than relinquishing the right of the State.
    One tenant in comnion may oust his co-tenant by resisting or denying his right or by excluding him from the enjoyment of it; and an interest thus acquired may become indefeasible by an uninterrupted continuance for a sufficient time.
    A deed of warranty given by one tenant in common in possession to a stranger who records his deed and enters and occupies a part thereof, the residue remaining vacant, ousts the co-tenants of the grantor, and puts the grantee in the seisin of the whole; and he becomes entitled to the protection of the statute of limitations against all conflicting rights.
    
      This was a petition for partition in which the petitioners alleged, that they were seised in common, with persons unknown, of three undivided eighth parts of an acre of land in the city of Bangor, described in their petition. Certain persons appeared as respondents, and severally pleaded sole seisin in certain portions of the acre, described in their pleas, and traversed the seisin of the petitioners alleged in their petition, and upon these pleas issues were joined. The petitioners adduced in evidence a deed dated April 2, 1803, acknowledged April 4, and recorded May 4, of the same year, from Isaac Batch, Moses and Amos Patten Nathaniel Barlow, guardian of Vinson Dunning, a non compos, to the petitioners of their interest in 42 lots of land, and among others of lot No. 73, according to a plan made by Moses Bodsdon, May 14,1801; also the said plan, it appearing that lot No. 73, embraced within itself most of the acre, of which partition. was prayed; also a deed dated August 5, 1800, from Andrew Dunning to Moses and Amos Patten, of his interest in the estate of his father, James Dunning, deceased, being one eighth part, also a deed, dated April 4, 1804, from John Dunning, another of the heirs of James Dunning, of his eighth, to Isaac Batch. It appeared that Vinson Dunning, was another heir, and entitled to one eighth. It was agreed that James Dunning, the father, was an original settler in Bangor, that the acre in question was a part of his possession, and that he was entitled to the favor of the government, under a resolve of the Commonwealth of Massachusetts. The petitioners produced a deed, dated November 11, 1802, from a committee of the Commonwealth, conveying to the heirs of James Dunning, deceased, certain lands, of which he died possessed, of which the acre formed part. It was admitted that James Dunning, the father, died intestate, prior to January, 1790, leaving James Dunning, his oldest son, and six other children, his heirs at law. James, the son, by the law as it then stood, was entitled to two shares, and it appeared from a deed in the case, that on the 14th of October, 1793, he acquired by purchase from Elijah Smith and Anne his wife, a daughter of the deceased, in her right, and from Robert Dunning & William Dunning, his brothers, their three-eighths, by which he became the owner of five-eighths of the estate. The respondents produced a deed dated June 1, 1800, from James Dunning, the son, and wife, to the petitioners of his five-eighths. This deed describes a tract of land containing two hundred and twenty-five acres, and then says, “ of wlfich only five-eighth parts common and undivided is the property of the above named James Dunning and is hereby conveyed ; with the exceptions of about ten acres conveyed to William Hammond,” describing the ten acres; “ and also one acre conveyed by deed to Rice,” describing it in the language of the deed to Rice; also another tract described, and proceeds, “ which exceptions are reserved out of the five eighths conveyed, as aforesaid,” “ to have and to hold the aforegrauted premises, viz. five-eighth parts thereof with the exceptions as above described,” that I am lawfully seised, &c., “ of the five-eighths with the exceptions aforesaid,” and continuing the same expressions in all the covenants.
    Also a deed of warranty, dated October 1, 1798, acknowledged the 2d, and recorded the 8th of the same October, from James Dunning, the son, conveying the acre by metes and bounds to Thomas Rice, also a deed of release, dated 11th of November, acknowledged November 12, and recorded December 30, 1801, of the same acre, by the same bounds to Jonathan Hyde. And it was admitted, that the title of Hyde had passed to the respondents, in the proportions by them claimed. Daniel Ladd testified, that in 1798, James Dunning, the son, improved and occupied a field which included the acre, which he that year sold to Thomas Rice, who paid him a horse therefor. The deposition of Jonathan Hyde, the grantee of Rice, was read : which stated in substance, that he purchased tbe land in Bangor known as the Rice or Hyde acre in 1801; laid it out in lots in 1822; and soon after sold out to various individuals; that he resided at Rath, and was in Bangor in 1807, in 1813, and in 1822; that he paid the taxes or caused them to be paid ; that although he had no recollection of appointing James Thomas his agent, as early as 1810, yet he finds a lease in his possession dated in that year from said Thomas, as his agent, to one Reynolds, and that he approved of the transaction, and received rents under the lease from time to time ; that the acre was unoccupied, except where there were buildings: that he thinks he appointed Mr. William 
      
      Emerson, about 1815, his agent to take care of the land and pay taxes, but has not a distinct recollection about it; that during the time, he never knew Thomas, who is his brother-in-law, or any one else, claim the land, or any of it, included within the description in the deed, but that after his survey in 1822, Thomas said he should for himself, or others, claim all that the deed did not give the deponent; that Thomas never claimed any interest in the lot covered by the deed, while the deponent owned the land; and that he had always claimed the entire ownership of the whole acre. ■
    
      Abner Taylor testified, that he became acquainted with the land in question, in 1802 or 1803, and that it was then known by the name of the Hyde acre ; that Thomas, one of the petitioners, stated to him that he purchased the acre for Hyde, who was his brother-in-law, that he went to the county of Worcester, and had a jaunt to find Rice, the owner. That in 1810, he and Moses and Amos Patten built a vessel, on the shore of the acre ; that while she was on the stocks, Thomas said he had called upon Patten for pay for the use of the land, who was unwilling to give any thing; that Thomas said-he was an agent, and had the care of the land for Hyde; that it made no difference to him, but he thought Hyde ought to have something. The witness added, that nothing was paid for the land, so far as he knew, and that Thomas never claimed the land, as his, to his knowledge. John Reynolds testified, that on the third of October, 1810, he took a lease of a part of the acre, to set a shop upon. The lease was under the hand of Thomas, was written by him, professing to act as the agent of Hyde, and had a seal affixed thereto. An account between him and Hyde for rent was introduced and verified by the witness. The witness testified, that the following year, he built a shop on the land he hired; that he sold the shop to one Pray, who paid ground rent therefor; Pray sold to Simon Harriman, who paid ground rent; that Harriman sold to Thomas A. Hill, under whom the witness hired and occupied the shop from 1818 to 1827, when he repurchased the shop; that it remained on the land, where it was first placed, until 1827, when John Sargent and another, who had purchased the land of Hyde, began to dig their cellar, at whose request he removed the shop off, and they thereupon put on the samo spot a wooden store, which remained thereon until it was burnt in July, 183d ; that there were, before the fire, wooden buildings from where his shop was, to the end of the acie, and upon the opposite side except an avenue; that Fisk & Billing’s wooden store, built in 1824, and Thomas F. Batch’s, both on the acre, were not burnt, but are still standing. And that his shop was the first building on the acre, except Simon llarriman’s blacksmith’s shop, which stood west of main-street, on or near the scite of the old Bangor Bank. David Bill testified, that in 1813, he got permission of William Emerson to put up hay scales, of the fashion of that day, on a part of the acre; that Emerson, when he gave liberty told him he must settle with Byde, and was referred to him to determine what ground rent he should pay. What Emerson, said was objected to, but admitted. That he soon after saw Hyde, to whom he paid rent from time to time, so long as they remained, $3,00 a year at first, and afterwards he believed $5,00 a year; that in 1827, at the request of George W. Pickering, "who had bought the land of Byde, he removed the hayscalcs off' and Pickering put up a building on the same place. Thomas Bart-let, who had sold the hayscales to Hill, testified that he was positive they were put up in 1813. Benjamin Weed testified, that in 1820 or 1821, William Emerson gave him and one Davis permission to put up a shop, on a part of the acre, Emerson saying at the time, that Byde would soon he here, and settle the price: that they built their shop, and Hyde came soon, and gave them a lease; and that their shop remained until Pickering, who had bought the land, required him to remove it, who thereupon built on the same place. The witnesses before mentioned were adduced in behalf of the respondents.
    For the petitioners,
    
      Jacob Chick testified, that in 1802 ho hired of Thomas a portion of the Byde acre, paying him therefor, three or four dollars a year, in building for him a chimney in his store; that lie put upon and inclosed the upper part of the acre with a fence of stakes, boards and withes, and cut grass there two or three years; that he thought he understood at the time, that Byde owned the acre, probably from Thomas, but upon further examination stated, that be could not say he heard him say any thing about it.
    
      Simon Mar riman testified, that prior to 1807, he had a blacksmith shop standing upon land belonging to James Thomas, not part of the acre, that in 1807 it was carried off by a freshet. That afterwards Thomas asked him, if he was going to rebuild, and that he replied he would not put his shop again, where it would go adrift, whereupon Thomas told him that he had a piece of land, where it would be safe, and accordingly gave him permission to set his shop, which he did, west of main-street, on the acre, on or near the scite of the Bangor Bank; that he was to give Thomas $2,00 a year, and he supposed he paid him for the time his shop stood there; that it remained until about the year 1818, when he removed it across the street to make way for the bank; that prior to 1807, he had heard about the Hyde acre; thought Thomas might have spoken of it, but could not recollect with certainty; that twenty-two or twenty-three years ago, but was not certain, whether during the late war, or before or after, he tried to purchase of Hyde the land upon which his shop stood, but thinking his price too high, he did not buy it. He further testified, that he did not see Thomas, after he left here in 1812, until he went to Houlton in 1828. Simon B. Harriman testified, that he is now 40 years of age, and that he came to Bangor thirty-three years ago; that the shop of his father, the last witness, stood on or near the scite of the old bank, and was removed to make way for the bank, which was built in 1818; that it afterwards stood upon the opposite side of the street, upon another part of the acre, for which he thought he once paid Hyde rent at Bath; that he had known the Hyde acre ever since he came to Bangor, and that he had understood it was purchased for a horse. Alvin Haines testified, that on the 24th of February, 1834, he went with Thomas, who there in his presence made a formal entry into every part of the acre, which was in a several occupation.
    On making the partition, the lots assigned to each party were marked on the plan, number 73 not being drawn or marked; and three-eighths of the whole 225 acre lot were assigned to the three shares.
    
      The counsel for the petitioners requested Weston C. before whom the trial was had, to instruct the jury: 1. That if the petitioners took a deed of the three-eighths, and put it upon record, and thereby became seised, and Hyde afterwards entered and occupied a part of the acre, it would not be a disseisin of the petitioners of the whole acre. 2. That the entry and occupation of Reynolds, under the lease given by Thomas, as attorney, being by the agency or consent of Thomas, was not a disseisin of Thomas of any part. 3. If of any part, it was not of the whole. 4. If Hyde intended to claim no more than he had title to, and entered and occupied, supposing, by mistake of his legal rights, that he owned the whole, this would not be a disseisin of the petitioners. 5. That to constitute a disseisin, the occupancy must be adverse to the owner. 6. That if Hyde’s occupying was by Thomas’ consent, it was no disseisin. 7. That if Chick went on under Thomas’ agency, and there is no evidence of the revocation of such agency, it may be presumed to have continued as long as Chick continued. 8. If Chick’s whole occupancy was by Thomas’ agency, then Thomas might take a deed, while it continued. 9. That if Thomas told Taylor that ho acted as the agent of Hyde, in purchasing the land, it was not evidence that he acted as agent, when he put IJ.arriman in possession, in 1807. 10. That the petitioners’ title commenced, when they caused a plan to be made, with a view to a partition.
    The Chief Justice instructed the jury, that the deed made by Dunning, the son, to Rice, being a deed of warranty and recorded, as was also the deed of Rice to Hyde, conveying the Hyde acre in severalty, by metes and bounds, if the grantees or either of them thereupon entered into any part of the acre and occupied it, it would be a disseisin of the other co-tenants; that the petitioners’ interest, if any they had, in the three-eighths claimed by them did not commence prior to April 2, 1803, when they took their deed of release; that if Thomas, when he put Chick into possession of the acre or part of it, acted as the agent of Hyde, his brother-in-law, of which they would judge from all the tistimony in the case, bearing upon that point, and Chick thereupon entered under Hyde, and was thus holding under him on the 2d of April, 1803, the other co-tenants were disseised, and that therefore nothing passed by their deed of release of that date to the demandants ; that if not satisfied upon that point, that by the entry of Reynolds under Hyde in 1810, and the continued occupancy of a part or parts of the acre under Hyde, for more than twenty years prior to the entry of the demandants, on the 24th of February, 1834, they were disseised, and their title thereby defeated, unless they or either of them had a concurrent possession, by the occupancy of Simon Harriman; that it hence became important for the jury to determine, whether Thomas, when he put Harriman on and suffered him to remain there, did, or did not act as the agent of Hyde ; that of this they would judge from the whole evidence having relation to this point; that what Thomas told Taylor, that he purchased of Rice for Hyde, in 1801, and his representation to him that he was his agent in 1810, was evidence upon this point to be considered by them, with the other testimony ; that it appearing from Hyde’s deposition, and from other evidence, that he claimed the whole acre, and having a warranty of the whole, through Rice, there did not appear any such mistake of bis rights, as would impair his title to the acre, and that if Harriman entered and held under him, Hyde, the demandants had no right of entry in 1834. Upon the points requested, the Chief Justice gave no other instructions than the foregoing. The jury returned their verdict for the respondents. If the instructions, given were erroneous, or those requested and withheld ought to have been given, or the testimony of Hill, objected to, ought not to have been received, the verdict was to be set aside, and a new trial granted; otherwise judgment is to be rendered thereon, unless the same should be set aside, as a verdict against evidence.
    There was a motion to set aside the verdict, as against evidence.
    The case was elaborately argued by Mellen and Rogers, for the petitioners, and by «7. Appleton and Starrett for the respondents.
    In the arguments for the petitioners it was said :
    1. That when the petitioners purchased the rights of three of the heirs of James Dunning, senior, they became tenants in common in the whole of the land, and had their election either to seek partition in the whole, as one lot, regardless of any division by another tenant in common, or might call for a partition in each lot. The other co-tenants could do nothing to impair these rights, but the petitioners were under no necessity of enforcing them. They wrent on and made partition of all but this acre, but the other shares in this being sold out to a different person, at a distance, no partition was made of it. They had the power of defeating the title under Rice entirely, unless on the partition it fell to the share of those who had sold to him, when it might enure to his benefit. The petitioners were willing to accommodate, but they gave up no rights in this portion of the common property by making partition of the residue. Gordon v. Pearson, 1 Mass. jR. 324; Porter v. Hill, 9 Mass. R. 34; Bartlett v. Harlow, 12 Mass. R. 348; Baldwin v. Whiting, 13 Mass. R. 57 ; Rising v. Stannard, 17 Mass. R. 282.
    2. As the respondents have no paper title to but five-eighths of the land, they seek, to take it from us, who have it, in some mode or other; and insist, that because the Hyde acre was excepted in Dunning’s deed to us of the five-eighths, that it transfers the title to them. But it must be remembered, that neither the grantor, nor the grantees had at that time any title to this acre. The one bad sold out, and the others bad not purchased in. It is not easy therefore to imagine how such consequence can follow. Having made a conveyance of his interest in these lots, he made an exception of them in this deed, the only effect of which was to render the deed what it would have been, if these lots had been excluded, instead of being included, and excepted out. An exception can only be out of what otherwise would have been conveyed, 4 Com. Dig. 283; Hornbeclc v. Westbrook, 9 Johns. R. 13 ; 10 Coke’s R. 106.
    3. If the petitioners could he considered, as trustees of the land for the respondents, it would afford them no defence in this process. The legal estate would be in us, and they would be put to their bill in equity. 4 Kent’s Com. 289. But that there is a trust of any description is wholly denied. The petitioners never derived any title in the acre by their deed from James Dunning; they then had no title in it from any source, and they now claim under a distinct title. 4 Kent’s Com. 289; Fisher v, 
      Fields, 10 Jahns. R. 495 ; Sleeve v. Sleeve, 5 Johns. Ch. R. 1; Philips ¶. Brydges, 3 Vesey, 127; 4 Kent’s Con. 305; Morvan v. Mays, 1 Johns. Ch. R. 339; Goodwin v. Hubbard, 15 Mass. R. 210.
    4. There is no foundation for saying, that here is a resulting trust, implied by law. Payment at the time is indispensable to the creation of such trust; and it exists only, where the consideration of the purchase is paid by one man, and the conveyance made to another; or where the trust is declared in writing in part, and there is a resulting trust of the residue to the heir at law. Lloyd v. Spillett, 2 Atlcins. 150; Willis v. Willis, ibid. 71; Bartlett v. Pickersgill, 1 Eden’s R. 515 ; Boisford v. Burr, 2 Johns. Ch. R. 405 ; Sterrett v. Sleeve, 5 Johns. Ch. R. 1; Hoivell v. Monson & B. Man’g Co. 3 Mason, 362; Radley v. Shaver, 4 Johns. Ch. R. 300; 4 Kent’s Com. 306.
    5. There is no reason for saying, that a title was gained by disseisin, or that there was such an adverse possession, when we took our deed, as would prevent the title from passing. The doctrine of disseisin is spread over a broad surface ; but one principle seems to be clearly established, which is, that there can be no disseisin, unless the commencement of it was a trespass. Mere sole occupancy is not sufficient. In the language of Chancellor Kent, “ Every disseisin is a trespass, but every trespass is not a disseisin. A manifest intention to oust the real owner must clearly appear, in order to raise an act which may be only trespass to the bad eminence of disseisin.” 4 Kent’s Com. 2d Ed. 482 to 489; Harrison v. Philips’ Academy, 12 Mass. R. 456 ; Little v. Libby, 2 Greenl. 242; Pro. Ken. Pur. v. Lab-oree, ibid. 275; Robison v. Swett, 3 Greenl. 316 ; Stearns on Real Actions, 39; Shumway v. Holbrook, 1 Pick. 114; Ricard v. Williams, 7 Wheat. 59; Me Clung v. Ross, 5 Wheat. 116; Barnitz v. Casey, 7 Crunch. 456; Carruthers v. Dunning, 3 Serg. & R. 373; Peaceable v. Read, 1 East, 568; Bigelow v. Jones, 10 Pick. 161; Prescott v. Nevers, 4 Mason, 326; Ross v. Gould, 5 Greenl. 204; Tinkham v. Arnold, 3 Greenl. 120; Fox v. Widgery, 4 Greenl. 214; Dennett v. Crocker, 8 Greenl. 239; Schwartz v. Kuhn, 1 Fairf. 274.
    
      6. But none of the parties bad any title to the land, before the deed from the Commonwealth to the heirs of Dunning, in 1802, which made them all tenants in common according to their respective rights. Little v. Megquier, 2 Greenl. 176; Polk v. Wendell, 5 Wheal. 308; Sampeyreac v. U. States, 7 Peters, 222; Knox v. Pickering, 7 Greenl. 106; llicard v. Williams, 7 Wheat. 59.
    7. The occupancy of the persons put in by Thomas could be no disseisin of him ; but if it could, it would extend only to the small parcels occupied, and not to the rest. Oakes v. Marcy, 10 Pick. 195; Pro. Ken. Pur. v. Laboree, 2 Greenl. 275.
    In the arguments for the respondents, it was said ; that they held under a warranty deed of the whole of the tract, in which there were definite and well known boundaries, and that the deed was recorded more than thirty years before the entry of the petitioners ; and that actual possession had accompanied the deed. A portion of the land was covered with buildings soon after the deed was given, and long since nearly the whole was covered with buildings and streets. An agent for the respondents attended to paying the taxes and taking care of the land. All the title the petitioners sot up accrued more than thirty years before their entry, and during the whole time the present claimants had full knowledge of all these facts, and were in a situation to enforce any rights they had for the whole period; and yet stood by and saw the respondents making very valuable improvements, without giving the slightest intimation, that they had any title.
    1. They have not exhibited sufficient evidence to put us on our defence. Their own testimony shews, that we were in possession when they took their deeds, which were mere deeds of release ; given by persons not in possession to persons in the same condition. Nothing passed by these deeds. Pro. Ken. Pur. v. Call, 1 Mass. It. 483; Porter v. Perkins, 5 Mass. R. 233; Warren v. Childs, 11 Mass. R. 22; Mayo v. Libby, 12 3Iass. R. 339; Hathorne v. Haines, 1 Greenl. 238; Quarles v. Quarles, 4 Mass. R. 680; King v. Barnes, 13 Pick. 24.
    2. If the petitioners have any strict rights, an attempt to enforce them against the respondents, under the circumstances of this case, is a legal fraud, which the courts will not countenance or suffer to be enforced. Lappish v. Wells, 6 Greenl. 175; Dunlap v. Stetson, 4 Mason, 349.
    3. By the deed from James Dunning to the petitioners, if they took any thing, it was only his five shares in the land not before conveyed, less by the amount of the value of the three-eighths by him previously conveyed, which by the terms of the deed was to be taken out of the remaining five-eighths. And on the partition the owners of the three-eighths actually received an equivalent for any right they might have had in the lands previously sold. The effect of this was a resulting trust for the benefit of those to whom Dunning had previously conveyed in fee. This trust is not within the statute of frauds; nor can the trustee set up the title to oust the equitable owner. Scoby v. Blanchard, 3 N. II. Rep. 170; Pritchard v. Brown, 4 N. H. Rep. 397; Hempstead v. North Hempstead, 2 Wend. 109; Comstock v. Smith, 13 Pick. 116. It has been said, that an exception can be only made out of the estate, which would otherwise have been conveyed. This is precisely our ground, that the exception was made out of the five-eighths of the remaining lands, which otherwise would have passed.
    4. The entry into the land under a recorded deed of warranty, and the possession of it for more than twenty years, exercising all the acts of ownership over it, incurring liabilities by paying taxes and keeping an agent in the neighbourhood to take care of it, the petitioners making no entry or claim during the time, in themselves give an indefeasible title against all persons, and especially against the petitioners, who were conusant of the whole facts. Farrar v. Eastman, 1 Fairf. 191; Pro. Ken. Pur. v. Laboree, 2 Greenl. 275; Robison v. Swett, 3 Greenl. 316; Town v. Needham, 3 Paige, 545; The King v. Bulterton, 6 T. R. 556; Prescott v. Ncvers, 4 Mason, 326; Bradstreet v. Huntington, 5 Peters, 402; 13 Serg. & R. 356; Jackson v. Smith, 13 Johns. R. 426; Clap v. Brompton, 9 Cowen, 530; Rickard v. Rickard, 13 Pick. 251; Doe v. Prosser, Cowper, 217; Cummings v. Wyman, Í0 Mass. R. 464; Bogardus v. Trinity Church, 4 Paige, 200; Jackson v. Tibbetts, 9 Cowen, 251.
    
      5. The fact, that the Commonwealth had not conveyed until after the deed to Rice cannot aid the petitioners. Before that conveyance, a title by disseisin, by deed, or by any other mode of acquiring title, would be good against all but the Commonwealth. In this case the resolve of the Commonwealth is but saying to the settlers, depend on your own rights, independently of us, and we will not interfere. La Frombois v. Jackson, 8 Cowen, 603 ; Prop. No. 6 v. Jones, 12 Mass. R. 334; Hill v. Dyer, 3 Greenl. 441 ; Jackson v. Vermilyea, 6 Cowen, 667.
   The action was continued for advisement, and the opinion of the Court was prepared and delivered at a subsequent term in Cumberland by

Weston C. J.

James Dunning, the younger, being the owner of five-eighths of a tract of land, containing two hundred and twenty-five acres, sold to different persons ten acres, one acre and an eighth of an acre, part of the same tract, by metes and bounds. These sales did not conclude his co-tenants ; and were liable to be defeated by them. But as the quantity sold was far short of the proportion to which he was entitled, he might well entertain a just expectation, that these parcels would be assigned to bis right, when partition was made, and thus his sales become confirmed. He ventured to rely upon a spirit of accommodation, on the part of his co-tenants.

He subsequently sold his five-eighths in the whole tract, describing it, to the petitioners, excepting therefrom the parcels before sold. Had the terms of the exception stopped there, there might have been some color for the position, that the exception was only of five-eighths of those parcels. But that his meaning, in his deed to the petitioners, might not be misunderstood, he adds, “ which exceptions are reserved out of the five-eighths, conveyed as aforesaid.” This language is plain and intelligible. It cannot easily be misunderstood. The parcels sold being reserved out of the five-eighths, the residue was conveyed to the petitioners. He had given deeds of warranty to his prior grantees ; and in selling the residue, he meant to make provision, that they should not be disturbed. In order to carry into effect the plain intent of the parties, it must have been contemplated, that in any partition which might be made, the parcels excepted would be assigned as part of the five-eighths; and that the petitioners, or whoever might claim under them, would be entitled to the residue of that proportion of interest, to be set off to them in severalty.

The petitioners did not purchase five-eighths, but they purchased such fractional part of the whole, as would remain, after deducting from five-eighths the parcels before sold. The previous grantees and the petitioners together were the assignees of the exact and entire interest of Dunning, the younger. After the first grants were satisfied, the petitioners came in for the residue. They claiming to represent five-eighths, and the proprietors of the other three-eighths, made partition among themselves. After determining what should be assigned to each, mutual releases were passed, to enable the petitioners and the other co-tenants to enjoy their respective shares in severalty.

In the arrangement, certain of the small lots, into which the whole tract was divided, were assigned to the other co-tenants, as an equivalent for their releasing to the petitioners their interest in the excepted pieces. The effect of this was, that these pieces were assigned as part of the five-eighths; the owners of the three-eighths taking their share elsewhere. Thus the five-eighths became detached and severed from the three-eighths; but it was the same interest in another form. The right to make partition was incident to the estate, of which the co-tenants availed themselves in a mode, with which they were satisfied. The proportion of the petitioners was not increased, or intended to be, by the partition. The five eighths had succeeded to the whole of the excepted parcels; but it was in consideration of a release and relinquishment of that interest in other parts of the tract.

If the petitioners, having paid no new consideration, their right being derived altogether from the conveyance from Dunning, hold three-eighths of the excepted parcels, they would have more by so much than they purchased; and that at the expense of the prior grantees, or of Dunning their warrantor. If that is to be the result, at variance as it manifestly is with the source and origin of their title, the interests of some of the parties will be sacrificed, in consequence of the course pursued by the petitioners. And if in this, they are to be aided by the technical principles of law, those principles will be perverted to a purpose, which is neither consistent with justice, nor with the fair construction of the deed, under which they claim. Technically an exception must be of part of what was previously granted, or would have been granted, but for the exception; and it is insisted, that as the three-eighths, claimed by the petitioners, never belonged to Dunning, the younger, they could not have been granted by him, and therefore could have formed no part of the exception. If a moiety of a tract of land in common and undivided, is granted by the owner of that proportion, which upon partition is afterwards set off in severalty, is it not the same interest? And if the grantor had taken a mortgage to secure the purchase money, would it not attach to that interest, when severed ? So if the grantor had excepted from the same moiety an acre by metes and bounds, which upon partition is assigned to that interest, shall the exception be defeated ? We perceive no sufficient reason why it should be. It is a distinct and determinate part of what would have been granted, but for the exception, in its new and derivative form, flowing from the right of partition, which is one of the legal incidents of the estate granted.

A conveyance of land not located, but which points out the manner in which it is to be located, is operative, and passes the land when located. Fairbanks v. Williamson, 7 Greenl. 96. There must be reasonable certainty as to the subject matter of a conveyance ; and no more can be required as to the subject matter of an exception. We think the exception in the deed under consideration, should be understood to mean, that out of the five-eighths were reserved the excepted parcels, they being first assigned as a part of that interest. It would hence result, that the petitioners could not claim any part of the acre against the exception. Had the partition between the parties been made by process and judgment of law, the consequences which we have deduced, we doubt not would have been justified and required. The same result ought to flow from the mode of partition adopted. That Thomas and Dudley so understood it, may well be presumed from their long acquiescence in the claim and enjoyment in severalty of the excepted pieces by the grantees of the younger Dunning and their assigns. But if the mutual releases executed by the parties, may have left the legal title of the proportion, claimed by the petitioners in them, it may be important to view the cause in other aspects, in which it may be presented. If the meaning of the exception cannot be directly carried into effect, that its plain purport might not be defeated, the five-eighths may be understood tobe conveyed to the petitioners, charged with the trust, in favor of. the grantees of the excepted parcels, their heirs and assigns, that so much of the land, as might be necessary to effect the object, should be appropriated to procure the extinguishment of the interest of the other co-tenants in these parcels ; and that would still leave to the petitioners all they purchased. It is not necessary, that such a trust should be declared by them. It is sufficient, if it is declared by their grantor in his deed of conveyance, in which case, they would take the land charged with the trust.

No particular form of words is necessary for the creation of a trust. It is sufficient, if the intention is clear. 4 Kent, 304. The excepted pieces were to be taken from the five-eighths : and if this could not be done, but by the procurement and agency of the petitioners, it does not appear to be too much to say, that when they accepted their deed, they took the land charged with that trust. Their title to so much as five-eighths cannot otherwise be sustained ; for they purchased that proportion, reserving therefrom the excepted pieces. Upon this construction, the petitioners are the trustees; and the grantees of those pieces, their heirs or assigns, the ccstuis que trust. In Armstrong v. Pierce, 3 Burrow, 1898, the court held it as a settled point, that the formal title of a trustee shall not, in an ejectment, be set up against the cestui que trust; because from the nature of the two rights he is to have the possession. Lord Ellenborough, however, in Shewen v. Wroot, 5 East, 138, thought otherwise ; and in a note to that case it appears, that the Judges were divided in opinion upon the same question, in the exchequer chamber. But if the trustee would at law' be entitled to judgment, this court, sitting as a court of chancery, would upon a proper process enjoin the execution of it against the cestui que trust. Dunlap et al. v. Stetson, 4 Mason, 349.

If the case required it, it might deserve great consideration, whether the claim of the petitioners could be enforced, without giving effect to the consummation of a legal fraud against Dun-iting and his heirs, who are bound by his covenant of warranty, and against those claiming the excepted pieces under him.

It is very manifest that the petitioners well understood, that they had no interest in those pieces. They took no measures to assert any claim thereto until 1834, more than thirty years after the execution of the release, upon which it is now founded ; notwithstanding, during all that time, they knew that sole seisin in the acre in question, was claimed and asserted by the grantee of Dunning or his assigns.

We proceed to the consideration of other points raised at the trial.

In 1798, Thomas Rice took a deed of warranty of Dunning, the son, of the disputed acre, who was then in the actual possession. On the part of Dunning, this conveyance was an unequivocal ouster of his co-tenants, front that part of the land, and a claim of sole seisin in himself. For notwithstanding the case of Porter v. Hill, 9 Mass. R. 34, which has reference to a case of jointenaney, it has been well settled that one tenant in common may oust his co-tenant, by resisting or denying his right, or excluding him from the enjoyment of it. Doe v. Prosser, Cowper 217; Coke Lit. 199 b. Bracket v. Norcross, 1 Greenl. 89; Rickard v. Rickard, 13 Pick. 251. And an interest thus acquired may become indefeasible, under the operation of the statute of limitations. And if the party doing the wrong may avail himself of the protection of that statute, there is much greater reason for extending it ‘to his grantee, to whom no wrong can be imputed.

A sale by metes and bounds to a stranger is an ouster of the other co-tenants, within the principle of the authorities before cited. But Rice having bought of the apparent owner in possession, was no disseisor. His estate might be defeasible; but he was not a wrongdoer in making his purchase. Nor is the title he acquired subject to the strict construction, which obtains against a disseisor. Pro. Ken. Pur. v. Springer, 4 Mass. R. 416; same v. Laboree et al. 2 Greenl. 275. Rice having taken a deed of warranty, and caused it to be recorded, his grantor being in possession, acquired a seisin, which he had a lawful right to transfer, in 1801, to Hyde, no adverse right or claim having in the mean time been interposed. If Chicle, the witness, then entered and occupied part under Hyde, the latter was thereby seised of the whole land covered by his deed, which he had lawfully purchased, if indeed such an occupancy were at all necessary for this purpose, under the circumstances, there being no adverse possession. The jury have found that Chick did enter under Hyde, through the agency of Thomas. It is however insisted, that there was no evidence to be left to the jury of the agency of Thomas at the time. We think otherwise. He acknowledged himself to have been the agent of Hyde in making the purchase of Rice, to Taylor in 1802 or 1803, while Chick was in possession. In 1807, he put on Harriman, as the jury have found, in behalf of Hyde, and in 1810, he made a lease in writing, as his agent and attorney, of part of the land to Reynolds. And although Hyde did not recollect, that he employed Thomas as his agent at so early a period, there was evidence to prove that fact properly left to the jury. If the seisin was in Hyde, it could not be in the petitioners’ releasors ; and could not therefore be acquired by their release. Whatever right, if any, that release gave them, commenced at its date ; and cannot be referred to the previous steps taken, preliminary to a partition among the co-tenants. And we are of opinion that Thomas, being the agent of Hyde, had no more right to take from a third person, a deed of land of which Hyde was seised, than a stranger. He only can lawfully convey, who is seised. Upon the facts therefore as found by the jury, the evidence of which was properly left to them, they were rightfully instructed, that the petitioners acquired no seisin by the release, under which they claim.

The point last under consideration, arises from a technical objection, ' which although available by our law, is aside from the merits of the case. There is however in the report, coupled with the finding of the jury, plenary evidence of a continued and uninterrupted seisin in Hyde and his assigns, for more than twenty years before the entry of the petitioners, and by w’hich their right of entry was taken away. Reynolds became the tenant of Hyde of part of the acre in 1810; and that tenancy continued in him and his assigns, until Sargeant and another purchased the same land of Hyde, and built a store upon it, which remained, until it was burnt in July, 1834, covering in the whole an uninterrupted period of nearly twenty-four years. It has been already stated, that the deed of warranty given to Rice, from a grantor in possession, which was duly recorded, and which enured to the benefit of Hyde, by a deed to him which was also recorded, followed by an entry and continued occupancy of part, if that was necessary, put the grantee and his assigns in the seisin of the whole. And being so seised, they became entitled to the protection of the statute of limitations against all conflicting rights.

It does not appear to us, that it could be any objection to the seisin of Hyde, that the occupancy of Reynolds was through the agency or by the consent of Thomas, or that his claim is more favorably presented, in consequence of his forbearance to assert it. The seisin of Hyde was necessarily adverse to any claim of seisin in Thomas; and not the less so, because he recognized the title of Hyde, and acted as his agent. The title of Hyde was openly asserted; and continued and preserved by the possession and occupancy of his tenants, and others claiming under him. That of Thomas, long abandoned, if it ever existed, has been set up, after a slumber of thirty years. Under these circumstances, and against a claim so long dormant, the respondents, in our judgment, are well entitled to the benefit of the statute of limitations. The co-tenancy of others in the Hyde acre has never been recognized since 1798. The conveyances, and all the facts since that period, are evidence of sole seisin in Rice and those claiming under him, and consequently of an ouster of the other co-tenants, up to the entry of the petitioners. The continuity of seisin under the Rice deed would have been broken, if the jury had found that Thomas put on Harriman in his own right, but this they have negatived. In addition to the facts adverted to in relation to Chick, to show the agency of Thomas in behalf of Hyde, there is in this part of the case, the evidence, that the land was known to Harriman as the Hyde acre; and that while in possession he negotiated with Hyde for the purchase of the part he occupied. We think therefore it was properly left to the jury to determine, whether Thomas did not put on Harri-man, as the agent of Hyde.

It does not appear to us to make any difference, in the deduction of title on either side, that the deed from the Commonwealth of Massachusetts of the Dunning land, was not made until 1802. The effect of that deed was, to confirm the titles, emanating from Dunning’s heirs.

. Upon the whole, we are of opinion that the petitioners have not sustained their title, in any point of view, in which their case may be legally presented.

Judgment on the verdict.

Mem. During the week allotted by law to this County, hut six cases, of nearly fifty standing for argument, were heard. Two of the opinions in the six cases then argued have not yet been received by the Reporter. The Court adjourned to the second Tuesday of August following, and then heard every case prepared for argument; and the Reporter has received opinions in most of them. These oases will follow those argued before that time in other Counties.-  