
    George B. Slater & another vs. Dexter Rawson.
    Where a party enters on woodland, claiming title, and cuts wood, and does other acts thereon, as owner, and no other person enters into possession, or disputes his title, he thereby becomes seized of the land, as against every one but the true owner, though his acts do not constitute a disseizin of such owner; and if he conveys the land by deed, his possessory title passes to his grantee, and the covenant of warranty, in such deed, runs with the land, and he is answerable thereon to his grantee's as-signee, who is ousted by the true owner.
    This was an action of covenant broken, to recover damages for breach of a covenant of warranty contained in a deed made by the defendant to Samuel Slater and John Tyson, dated March 5th 1821, and purporting to convey to them one hundred and thirty acres and seventeen rods, more or less, of land in Oxford Gore, now a part of the town of Webster.
    
      Wilde, J., before whom the trial was had, reported the case, as follows: The plaintiffs claimed title to the land, as assignees of said Slater & Tyson. Tyson devised his portion thereof to Ebenezer and Susan Collins, who conveyed the same to said Slater, in 1832, and he devised the whole thereof to the plaintiffs and John Slater, and said John conveyed his portion to the plaintiffs.
    The plaintiffs introduced said deed to S. Slater and J. Tyson, for the purpose of sustaining their action. This deed described the land by boundaries and lengths of line, as set forth at large in 1 Met. 450, 451.
    To prove that the defendant was seized of said land, when he made said deed, and also the seizin of the intermediate grantors and devisors, under whom the plaintiffs claimed, and that the plaintiffs were ousted of twenty two acres thereof by Elisha Jacobs, who claimed under a better title, they introduced the testimony of several witnesses, and also a deed from Joseph Russell and others to John Rawson, in 1772, and a deed from John Rawson to Joseph Rawson, father of the defendant, dated September 10th 1785 ; also a plan of the premises and other adjoining lots. From these papers and witnesses it appeared, that the premises were part of a tract of woodland, extending several miles, and that they had never been fenced: That in 1807, the defendant’s father pointed out to a witness the line between the disputed premises and an adjoining lot, called the Day lot, as the boundary of his land, and also pointed out to the same witness where his land was, as he and the witness went across the lot adjoining the Day lot: That the defendant’s father cut hoop poles on the twenty two acres from which the plaintiffs alleged that they had been ousted, and in 1807 claimed the land as his own : That the defendant often told said witness, that he was in possession of said land, and had likewise told him of cutting hoop poles upon it, many years ago ; that the witness saw the poles, many years ago, which the defendant said he cut there; and that this was before the defendant made his deed to Slater & Tyson : That another witness purchased of the defendant, in 1817, part or all of the white oak timber on the Tyson lot, including the twenty two acres, amounting to $40 in value, and cut it off; part of it being cut on the twenty two acres, as the defendant stated to him : That the defendant’s father claimed to own the premises in dispute, forty years ago; his farm, which the defendant owned, adjoining the Tyson lot.
    Ezekiel Davis, eighty eight years old, testified that ever since he was twelve years old, he had known the Thompson farm, the east line of which was the west line of a lot, called the Sevey lot, which was claimed by Amos Waters, as embracing the twenty two acres in dispute.
    Reuben Waters testified that he had long known the Sevey lot, and was present at a survey of it, when it was conveyed to his brother, Amos Waters; and that one of the selectmen of Sutton was present at the survey.
    Elisha Jacobs testified that before he took from Amos Waters the deed (hereafter mentioned) of the Sevey lot, he and said Waters went upon the lot; that they spent the greater part of a day in going round the land; and that he knew of no dispute as to the title, until June 1839.
    The title, under which said Jacobs entered and ousted the plaintiffs, was derived as follows: John Rawson, in 1782, conveyed by deed to William Sears, in which deed the Sevey lot was described by courses and boundaries, “ so as to include one hundred and fifty acres.” (See the description, 1 Met. 451, 452.) In 1786, Sears conveyed the same to one Fitts, who conveyed it, in 1796, to Sevey, who built and occupied a house upon the lot, and cultivated a part of it. Sevey conveyed the same lot to the town of Sutton, in 1807. Said town conveyed it to Amos Waters, in 1807, and Waters to Elisha Jacobs, on the 21st of February 1822.
    The defendant, in opening, placed his defence on three grounds. 1. That the description of the Sevey lot did not embrace the twenty two acres in question. 2. That if it did. the defendant’s own possession, and that of his father, of the premises, prior to his (the defendant’s) conveyance to Slater & Tyson, gave him a good title to the premises; so that the plaintiffs had yielded to an insufficient title on the part of Jacobs, and therefore they had no claim against the defendant, on his covenant of warranty. 3. That if the defendant’s title, a,t the time of his conveyance to Slater & Tyson, was not valid, by deed or possession as above, he was not then seized of the land in controversy, and consequently the plaintiffs could not maintain this action, as assignees of the covenant o warranty.
    Upon the first of the above points, viz. that of boundaries, the defendant introduced evidence; and the jury found as hereinafter stated. Upon the subject of the defendant’s continued possession, and that of his father, the defendant introduced evidence to show that, forty six years ago, his father sold timber, which was cut from the east end of said lot, and that, one year earlier, he built a house, and got the timber therefor from the same lot; cutting logs as far east as the lot extended: And that the defendant, after the death of his father, sold $ 80 worth of hoop poles from the Tyson lot.
    The judge intimated an opinion, that acts like these, being mere acts of trespass upon unenclosed wild land, would not operate as such a disseizin of the rightful owner and continued possession of the premises, as to deprive him of his title to the estate; and he proposed to rule, that the acts of the defendant, in cutting hoop poles or timber, upon the premises, and claiming them as his own, would constitute such a seizin on his part, that he would be liable under his covenant of warranty to the plaintiffs, if they had been ousted by Jacobs, by an elder and better title. The case was thereupon submitted to the jury, upon the question whether the twenty two acres in dispute were embraced in the aforesaid deed to William Sears, in 1782. The jury found a verdict for the plaintiffs, and assessed damages. Thereupon the case was saved for the consideration of the whole court, whether the plaintiffs were entitled to maintain the present action. Judgment on the verdict, or a nonsuit, to be entered, according to the opinion of the court on this report of the case.
    The argument was had at October term 1841.
    
      Merrick & Washburn, for the defendant.
    C. Allen & Bacon, for the plaintiffs.
   Wilde, J.

At a former hearing of this cause, (1 Met. 450,) i. was decided that this action could not be maintained for a breach of the covenant of warranty in the deed of conveyance from the defendant to Slater & Tyson, from whom the plaintiffs derive their title as assignees; because, on the facts then reported, it appeared that the defendant was never seized of the premises described in the said deed, and consequently no estate passed thereby, and that the covenant of warranty did not attach to the land and run with it. On the new trial since had, the plaintiffs introduced evidence to prove that the defendant was in fact seized and possessed of the premises, and that his title passed to his said grantees. It was proved that Joseph Rawson, the father of the defendant, claimed the disputed land during his life; that he sold timber, and got timber to build a house for himself, from the same land, and cut hoop poles therefrom. It was also proved that the defendant, after the death of his father in 1811, continued the same claim, under a devise to him ; that in 1827 he sold all the white oak timber on the Tyson lot, including the twenty two acres in dispute ; and that, during all this time, and until the time when he conveyed to Slater & Tyson, no other person had any actual possession of the premises in dispute, or made any claim thereto. It therefore clearly appears, by the evidence, that the defendant, at the time of his conveyance to Slater & Tyson, had the actual possession of the premises, and that he had a valid title against all the world, except the true owner of the Jacobs lot. If any other person had entered on the land in dispute, he might have maintained trespass against him ; or if he had been ousted, he might have maintained a writ of entry.

But the defendant’s counsel contend, that although he had possession of the land in dispute, yet he had not such a possession as would amount to a disseizin of Jacobs, who afterwards entered on the premises and ousted the plaintiffs ; and therefore that the defendant was never actually seized of the land in dispute, and that no title thereto passed by his deed to the grantees; so that the covenant of warranty could not run with the land and pass to their assignees.

It is said by Chief Justice Parsons, (3 Mass. 219,) that 'ca. - though there may be a concurrent possession, there cannot be a concurrent seizin of lands.” However this may be, according to the doctrine of the ancient feudal law, it is not supported by modern decisions, and is not applicable to our tenures, except in a qualified and limited sense. It is true that two adverse parties cannot both be seized of the same land at the same time. But if A. enters on the land of B., without ousting him, or doing some act equivalent to an ouster, he will not thereby acquire a seizin as against B., unless B. elects to consider himself disseized; but A.’s possession would constitute a legal seizin against any one who might enter upon him and oust him without right; and he might maintain a writ of entry against the wrong doer, declaring on his own seizin, and a disseizin by the tenant.

According to the modern authorities, there seems to be no legal difference between the words seizin and possession, al though there is a difference between the words disseizin and dispossession; the former meaning an estate gained by wrong and injury, whereas the latter may be by right or by wrong; the former denoting an ouster of the disseizee, or some act equivalent to it, whereas by the latter no such act is implied. Co. Lit. 153 b. 181 a. 1 Bur. 108, 111. Matheson v. Trot, 1 Leon. 209. Smith v. Burtis, 6 Johns. 217. Lord Coke says seizin signifies, in the common law, possession. Co. Lit. 153 a. Seizin, according to Com. Dig. Seisin, A. 1, imports the having possession of an estate of freehold or inheritance in lands or tenements. See 6 Johns. 206, and cases there cited.

It is not necessary, however, in the present case, to decide the question whether there is any legal distinction between the words seizin and possession; for if the defendant was in possession when he conveyed to Slater & Tyson, claiming to hold the whole land conveyed, he had a good right to convey his title, whatever it was. His estate passed, by his deed, to the grantees, and all his covenants were binding. This principle is fully sustained in the case of Bearce v. Jackson, 4 Mass. 408. The court there say, “ it is very clear that the defendant’s intestate, being in possession claiming a lee simple in the land, was able to convey.” And it was also decided that such a possession and claim constituted a legal seizin. This decision is in conformity with the construction given to the covenants of seizin and right to convey, which have been held to be synonymous, because the same fact, viz., the seizin of the grantor, will support both covenants; and it is very clear that a person in possession of land or other property, claiming a title, may convey it; and his title, whatever it may be, will pass to his grantee. In some cases, however, the covenants of seizin and right to convey do not stand on the same footing; for if a grantor covenants that he is seized in fee, when he has only an estate for years, he would have good right to convey, and his estate would pass to his grantee; so that the covenant of warranty would run with the land, although the covenant of seizin had been broken. So it is universally true, that a party in possession of land, claiming title, may make a legal conveyance, and his title by possession will pass to his grantee. Actual possession of property gives a good title against a stranger having no title.

But it is objected, that the defendant never had any legal possession of the land in question, because, as his possession did not amount to a disseizin, the constructive possession stih continued in Jacobs, who had the legal title. This is true, as between the defendant and Jacobs; for if there is a tortious possession, not amounting to a disseizin, the constructive possession, as between the tortfeasor and the party having the legal title, is considered as continuing in him who has the right. But the tortfeasor may, nevertheless, well maintain an action of trespass or a writ of entry against a stranger without title, for a trespass or a disturbance of his actual possession; and the defendant in such an action cannot defend on the ground that the plaintiff’s possession was the possession of the true owner. A party may have a possession which is legal and valid against one party, and not against another. A tenant at will may maintain trespass against a stranger, although his possession is the constructive possession of his lessor. In an action of trespass quart clausum fregit, the defendant can never plead soil and freehold in a third person, without alleging a license from him; because a party, having actual possession, but not the right of possession, has a good title against a party having none.

In Harker v. Birkbeck, 3 Bur. 1556, the plaintiffs had possession under a third person, by virtue of an agreement not stamped, and which, therefore, conveyed no title; and it was held that the plaintiffs, having possession, might maintain trespass against any one having no right. Upon the same principle, it has been frequently decided, that a mere intruder cannot protect himself in his possession, by setting up an outstanding title in a stranger. On this ground it was held in Jackson v. Harder, 4 Johns. 202, that a person, having had possession of land for eight or ten years, was entitled to recover possession against a mere intruder. And in Jackson v. Hazen, 2 Johns. 22, the plaintiff recovered judgment in ejectment, on a mere possessory title of three years’ continuance, on the ground that a naked prior possession is a sufficient title against a mere intruder. In Lund v. Parker, 3 N. Hamp. 50, Chief Justice Richardson says, there is no doubt, that possession of land without title, or color of title, is sufficient evidence of a seizin, in the possessor, to entitle him to hold the land against every person, who can show no better evidence of title.” And this principle is well established in this Commonwealth. In Newhall v. Wheeler, 7 Mass. 189, it was held that actual possession was prima facie evidence of a legal seizin; and that a stranger should not be permitted to control this evidence, by proving the existence of a trust estate. In Cutts v. Spring, 15 Mass. 137, it was decided that a grantee of land from the Commonwealth, who had taken possession of more land than he was entitled to hold under his grant, had a right to maintain trespass against a stranger who entered without right. The court there say, “ it is wholly immaterial to the defendants, whether the location covered more land than the terms of the grant would warrant. The plaintiffs were seized as well as possessed, in regard to every one but the Commonwealth ; who might, or might not, reclaim part of the land located, as not conveyed.” In Cook v. Rider, 16 Pick. 186, it appeared that the plaintiff had no title to the locus, except by entry on a vacant lot, incapable of cultivation, and by driving down stakes around the exterior lines of the lot, and by erecting salt works on a portion of the land. And it was held that the plaintiff had a sufficient possession to maintain trespass against a stranger, who entered without right. But such a possession manifestly was not a disseizin of the true owner. The same principle is laid down in Spurr v. Bartholomew, 2 Met. 485, 486. So in a case de cided in 1838 or, 1839, Jackson v. Worcester Rail Road, (not reported,) it was held that the demandant was entitled to recover the premises on his title by possession, although the possession was not such as would constitute a disseizin of the true owner. After this decision, the tenants, on a motion for a new trial, proved that they had derived a title to a portion of the demanded premises from the true owner, and as to that portion it was finally decided that the demandant had acquired no title by disseizin, and could not maintain his action.

According to these authorities, we think the evidence, which is reported, clearly proves that the defendant had acquired, by possession and occupation, a legal, although not an indefeasible, title to the land in question. He was lawfully seized and possessed of it, against all the world, Jacobs only excepted. His title, therefore, by his grant, passed to his grantees, and from them, by intermediate conveyances, to the plaintiffs, with the covenant of warranty annexed; and for the breach of that covenant the plaintiffs are well entitled to damages. The defendant cannot set up, in defence, a constructive seizin or possession in a stranger. Such a defence has no foundation in law or in justice, and cannot be maintained.

Judgment on the verdict.  