
    Thankful Wade vs. William Lindsey.
    In an action of trespass quare clausum fregit, the defendant pleaded the general issue, and filed a notice that he claimed and should give evidence of title to the locus in quo: The jury found the defendant guilty, assessed damages, and also found that the defendant had no title to the land described in the plaintiff's declaration 5 and judgment was rendered for the plaintiff. Heldf that this judgment was not conclusive proof of the plaintiff’s right of property in said land, nor of Ha title to maintain a writ of entry to recover the land from the defendant in tl at action.
    Where several persons, without privity of estate, successively enter on land as dis-seizors, their several possessions cannot be tacked so as to make a continuity of disseizin of sufficient length to bar the owner's right of entry.
    Where a disseizee, whose right of entry, but not his right of action, is barred by the statute of limitations, makes an entry upon the land, and retains possession, he does not thereby forfeit his right of action \ and, therefore, if he is sued in a writ of entry, by the disseizor whom he has ousted, he may, to prevent circuity of action, set up his ancient title, in defence, by way of estoppel or rebutter. And though the disseizee, in such case, was originally owner of only part of the land, as one of several tenants in common, and received a conveyance of his cotenants' shares thereof, while they and he were disseized, yet he may maintain his defence to the possession of the whole.
    Writ of entry to recover “a certain messuage, with the appurtenances, situate in Blandford, containing thirty-five rods of land.” The writ was dated May 25th 1839, and averred that the demandant was seized of the demanded premises within thirty years, and had been disseized by the tenant.
    At the trial, the demandant gave in evidence a judgment recovered by her at the May term, 1839, of this court, against the tenant, in an action of trespass for breaking and entering the demanded premises, and pulling down a building thereon, and converting the materials to his own use. In that action, the defendant (the tenant in this action) pleaded the general issue, and filed a notice that he also claimed and would give evidence of title to the premises described in the plaintiffs declaration. The jury found the defendant guilty, and assessed damages for the plaintiff at $ 16-50. They also further found that the defendant had no title to the land described in the plaintitFs declaration, but that the soil and freehold thereof were in the plaintiff.
    The demandant also introduced a mortgage deed of the demanded premises, made to her by Renssalaer Blanchard-dated February 1829, to secure payment of two notes, payable at different times; which deed described the mortgaged premises as the same that said Blanchard purchased of Eben-ezer Williams, “ reference being had to his deed registered at Springfield: ” Also a quitclaim deed from said Williams to said Blanchard, dated May 11th. 1816, which described the quitclaimed premises as the same which said Williams purchased of Nathan Storrs, “by his deed of quitclaim, dated November 13th 1809, and which were set off to said Storrs on execution in his favor against one Jonathan W. Willard: ” Also said deed of said Storrs to said Williams, which described the premises thereby quitclaimed as “ a certain shop, with the addition thereto, in Blandford, which was formerly occupied by Jonathan W. Willard’s goldsmith’s shop, and which was lately set off to me” [said Storrs] “upon an execution in my favor against said Willard: ” Also the execution, referred to in said last deed, and the levy of the same, “ on the debtor’s real estate,” dated November 24th 1806, in the form prescribed for such a levy, and in which the property levied on was described as “a shop of the said Willard, in Chester, or on the line of Blandford, now occupied by John Sizer, with the appurtenances.”
    It appeared in evidence, that John Sizer occupied part of the premises in the year 1801, and continued in the occupation thereof one or two years; that during part of the time, he occupied by contract with the widow of John Lindsey, who claimed the premises as part of her dower, though no assignment of dower was shown; that in 1802 or 1803, Willard went into and remained in possession three or four years; that in 1808, John Sizer was in possession, and remained so two or three years; that said Williams went into possession after said Sizer, and enclosed the whole land, which continued in his possession, and in the possession of said Blanchard and the demandant, until within five or six years before 1839, when the tenant went into possession, and continued his possession till the time of the trial of this action.
    The tenant claimed as heir of John Lindsey, who died seized of the demanded premises, about the year 1791, and left four children, of whom the tenant was one.
    The tenant introduced a deed of the demanded premises from Robert Lindsey to said John Lindsey, dated in 1781, and also deeds of quitclaim from the three other heirs of said John. These deeds were objected to by the demandant, on the ground that those under whom she claimed were in pos» session at the time when the deeds were executed.
    The case was taken from the jury, by consent of the parties, who agreed that, upon the evidence above stated, the court should “ enter such judgment as the law requires.”
    This case was argued at the last September term.
    
      Boise 8f W. G. Bates, for the demandant.
    The levy on the shop and appurtenances, as real estate, carried the land under and adjoining it, which was necessary to its use. Whitney v. Olney, 3 Mason, 280. Blake v. Clark, 6 Greenl. 436. Bacon v. Bowdoin, 2 Met. 598.
    It is to be presumed that Sizer entered, in 1808, under Willard. And as Willard was, doubtless, a disseizor, the adverse possession has continued for more than thirty years. But if the demandant has not a title to the demanded premises by virtue of a possession of thirty years, yet her title by possession, under deeds, for a great number of years, is good, as against the tenant, for all but one fourth part, inasmuch as she was ousted by him, and may recover against him as a disseizor. Dewey v. Brown, 2 Pick. 387. Dighee v. Rice, 5 Mass. 351. Stearns on Real Actions, 41. Parker v. Locks & Canals, 3 Met. 91. The deeds from three of the heirs of John Lindsey, on which the tenant will rely, passed nothing, because the grantors were disseized when they made the deeds.
    The judgment recovered by the demandant, in the action of trespass, estops the tenant in the present action. Young v. Rummell, 2 Hill’s (N. Y.) Rep. 478. Under the present mode of pleading, the notice given by the defendant, that he should rely on title, was tantamount to a plea of soil and freehold; and therefore the verdict and judgment bar the present action. 1 Stark. Ev. 194.
    
      
      R. A. Chapman & Ashmun, for the tenant.
    The verdict, in the action of trespass, does not estop the tenant, as it went beyond the issue. Besides, the plaintiff in that action might have soil and freehold sufficiently to maintain trespass, though the defendant might have a writ of entry against her The notice given by the defendant, that he should rely on title, could not have the effect of a special plea, because he was entitled to give title in evidence, under the general issue, without notice. Dodd v. Kyffin, 7 T. R. 354. Argent v. Durrant, 8 T. R. 403. See also Arnold v. Arnold, 17 Pick. 10. Outram v. Morewood, 3 East, 355 Jackson on Real Actions, 274, 275, 284.
    The levy of Storrs’s execution, if of any effect, did not cover the whole of the demanded premises. But that levy was wholly void, because it was not by metes and bounds, and also because it was an attempt to obtain title to personal property by a levy adapted, in form, to real estate. Tate v. Anderson, 9 Mass. 92. Bott v. Burnell, 11 Mass. 163. Ashmun v. Williams, 8 Pick. 402.
    The demanded premises descended to John Lindsey’s heirs, in 1791, and still belong to them, unless it is shown that the demandant has obtained title to them, or to part of them. If she has obtained title, it is by long continued disseizin, commencing with Willard’s entry, in 1802. But it does not appear that Willard’s possession was adverse. He probably entered by leave of Sizer, who hired of John Lindsey’s widow However this might have been, it is certain that the facts do not show such a continuity of disseizin, by successive occupants, who had a privity, as bars the tenant’s right of entry. Jackson v. Leonard, 9 Cow. 653.
    The tenant may claim, by way of estoppel, under the deeds of three of John Lindsey’s heirs, though they were disseized when they executed those deeds.
   Wilde, J.

By the agreed statement of facts, it is admitted that John Lindsey died, seized of the demanded premises, in the year 1791, having purchased the same, in the year 1781, of Robert Lindsey. The tenant is one of the heirs of said John Lindsey, and has the elder title; so that, as to his share of the premises, this action cannot be maintained, unless the demandant has acquired a paramount title by disseizin. It is not expressly agreed that either John Lindsey or his heirs have ever been disseized; but it does appear by the statement of facts, that the demandant, and those from whom she derives her title, have had a continuous possession for more than twenty years, and that, at the May term of this court, in 1839, the demandant recovered judgment, in an action of trespass against the tenant, for breaking and entering her close; the same being the demanded premises. This, undoubtedly, is good evidence of the demandant’s right of possession; but it is no conclusive proof of her right of property, or of her title to maintain a writ of entry. If she has any such title, it is derived from Jonathan W. Willard, who went upon the premises in 1802, and remained there for three or four years. But it is not agreed that his possession was adverse to the heirs of Lindsey. On the contrary, the tenant’s counsel contend that it is to be presumed that he occupied by the permission of John Sizer, who, in 1801, occupied a part of the premises under a contract with the widow of John Lindsey. However this may be, we are certainly not authorized to presume the fact; nor are we authorized to presume any fact to the contrary, namely, that Willard’s possession was adverse to the heirs of Lindsey, or that it was such, in other respects, as would amount to a dis-seizin. In 1808, however, Nathan Storrs levied an execution on the premises, as the property of the said Willard; and the possession under that levy was undoubtedly adverse to the heirs of Lindsey.

But it is denied, by the tenant, that the levy was valid to pass any title to the land, it not having been levied thereon, but only on the house or shop thereon standing.

It, however, appears, by the return of the execution, that it was leyied on the shop or building of the execution debtor, as ms real estate; which would pass his title, such as it was, to the land on which the building stood. But it also appears, by the return of the execution, that at the time of the levy, John Sizer was in possession of the premises; and it does not appear that Sizer was ousted, or his possession interrupted. And it is agreed that the said Sizer was in possession in 1808, and for two or three years after. After he quitted the possession, Williams entered and enclosed the premises; and from that time, and not before, the demandant has proved, by the deeds and facts agreed, a continuous adverse possession, up to the time when the tenant entered and took possession. The exact dates are not stated; but Williams’s possession did not commence until after his purchase from Storrs, which was in November 1809; and the tenant entered and took possession five or six years before the time when the facts were agreed, so that it is clear that the demandant has not proved a continuous exclusive adverse possession for the term of thirty years ; for she does not prove any connection between the possession of Williams and that of Sizer, nor between the possession of Sizer and that of Willard ; and, since the tenant’s entry, the demandant has had no actual possession, but only a right of possession. '

It has been argued, that the presumption is, that Sizer entered under Willard; but there is no ground for such a presumption. If we were authorized to make any presumption or inference from the facts agreed, it would be that Sizer’s possession, in 1808, was the renewal of his possession in 1801, when he entered by the permission of John Lindsey’s widow; and that Willard entered by a like permission, or by the permission of Sizer ; and that the possession of neither was adverse to the heirs of Lindsey. But, independently of these presumptions, and all other presumptions of fact, we are of opinion that this action cannot be maintained. The tenant has the right of property; as his is the elder and better title, which, when this action was commenced, was not barred by the statute of limitations. Williams entered after November 1809, and this action was commenced in May 1839. So that if the demandant, and those from whom she derives her title, had had possession the whole time, the tenant’s right of action would not have been barred. The possessions of Willard and of Storrs cannot be added, to make out the thirty years ; for the possession of Sizer intervened. And to bar the tenant’s right of action, there must have been thirty years of continuous adverse possession under privity of title in the several occupants.

It is, however, objected, that the tenant’s entry was unlaw ful, and that, therefore, he is not remitted to his ancient title And this, it is true, is the strict rule of the common law. The tenant, therefore, could not justify his entry, under his ancient right, in an action of trespass. But it does not follow that he has no defence in this action ; for, although the tenant is not remitted to his ancient right, he did not, by his entry, forfeit his right of action. If, therefore, the demandant should recover in this action, the tenant might, on his ancient title, recover back the same premises, if not barred by the statute of limitations. It was not so barred when this action was commenced, and this case must be decided according to the existing rights of the parties at that time. For this reason, and to avoid circuity of action, the demandant is estopped to set up her claim against the tenant. To allow such a circuity of action, would only serve to increase expenses, and to prolong litigation, and would be a reproach to the law and the administration of justice. This law of estoppel, or rebutter, to avoid circuity of action, is well established; as where a party conveys land with warranty, to which he has no title, and afterwards acquires a good title by descent or purchase, and thereupon brings an action against his grantee to recover the land. In such a case, the demandant has a good title to the land, and no title passed by his deed to the grantee: yet, as he would be liable on his warranty for the value of the land, if he should recover, the principle of avoiding circuity of action interposes, and rebuts and bars his right. The same principle interposes in the present case.

But it is objected, that the tenant has not a legal title to the whole of the demanded premises, as the deeds to him, from the other heirs of John Lindsey, passed no title, they being disseized when they were given.

It is true that no title passed by these deeds, except by way of estoppel. But they were valid as between the parties ; and the tenant would be authorized to maintain an action in their names, to recover possession of the premises, and thereupon to hold the same to his own use, by an indefeasible title. He is tierefore substantially entitled to the whole estate. We are therefore of opinion that he is entitled to the possession of the whole, notwithstanding this formal objection.

Judgment for the tenant.  