
    Enos Stevens, administrator of Samuel Stevens vs. Daniel Griffith, et al.
    Bennington,
    February, 1831.
    Where a deed expresses no other consideration except the words, for good consideration me thereunto moving,” the jury, without any direct evidence on the subject, may, from other circumstances proved, presume a legal consideration.
    So they may presume the execution of a deed, bearing date before any statute of this state required acknowledgement and recording, with no other proof than its being long acquiesced in. as avalid deed.
    A division, in fact, of land among proprietors, not made conformable to law, may become binding upon all concerned, by an acquiescence of fifteen years.
    The plea of the general issue, in an action of ejectment» denies the whole cause of action, and the plaintiff cannot recover, without proving the defendant in possession of the premises at the time the action was commenced.
    A deed, executed before any statute required acknowledgement, may be proved like other writings, though not acknowledged.
    This was an action of ejectment for lot no. 2, in the 13th range of lands in Winhall, which came up from the county court upon the following bill of exceptions. The defendant’s plea was the general issue only.
    “ The plaintiff gave in evidence, on the trial, the charter of Winhall, by which it appeared, that Ebenezer Fisk was an origin-ai proprietor, and the grantee under whom the plaintiff claimed the right in question. The' plaintiff next offered a deed from Ebenezer Fisk to Samuel Bishop, jun., dated March 31, 1763, expressing no other consideration except these words, “ to wit,” 61 for good consideration me thereunto moving.” Which deed was objected to for want of consideration expressed in the deed, but was admitted by the court. The plaintiff further offered in evidence a paper, purporting to be a deed from Samuel Bishop, jun. to Samuel Stevens of the above right, and one other, dated 7th November, 1770, purporting to be witnessed by David Austin and Moses Wells, without being acknowledged ; also the receipt of the payment of taxes by Samuel Stevens on that right and several others, in February, 1802, 1806, 1810; also parol evidence, tending to show, that Samuel Stevens attended all the proprietors’ meetings, and claimed and voted upon that right and many others, as his own ; that no other person ever claimed, or voted on said right, and that there was no other deed on record of said right, from Bishop or any other, as evidence tending to show the execution of said deed, without showing the death of either of the witnesses,or the hand writing of said Samuel Bishop, jun. or that of either of the subscribing witnesses ; or that they were out of the reach of process. Which said deed and evidence, so offered, were objected to by the defendants, but admitted by the court.
    The plaintiff having given no evidence tending to show the defendants to have been in possession-of the said lot, at the time of the commencement of the action, or at any other time, the defendants moved the court that the plaintiff become nonsuit, for the wantofsuch evidence. Which motion was overruled by thecourt»
    The defendants having produced several acts of the legislature, deeds and records, tending to shew a legal title in themselves by a vendue sale of the original right of Moses Lyman, in said Win-hall, for the nonpayment of a tax of three cents per acre on land in said town, laid by the Legislature at their session, October, 1818, the plaintiff then offered in evidence, to show a division of the lands in Winhall, and that the lands in question were severed and set to the right of Ebenezer Fisk, copiesof the proprietors’ records, together with a plan or map, contained therein, of the allotment of the 13th and 14'th ranges ; and also,evidence tending to show, that thewarningof the proprietors’meetings, mentioned in said records, was published in one newspaper only printed in this state ; and also an act of the legislature passed on the — day of— 1799, purporting to confirm, and make valid, certain divisions of land in said Winhall therein mentioned; and, also, parol evidence tending to show, that all the proprietors of Winhall met atone of the proPr'etors> meetings, and agreed upon a division of the undivided and unlocated lands in said town, lying between the 12th range and the east line of Manchester, into the 13th and 14th ranges, and the allotment of the same into 64 lots ; and having made a plan of such division, into the loth and 14th ranges, and' divided these ranges into 64 lots on paper, without any actual survey thereof by any committee or otherwise, the proprietors drew for the lots as there (numbered, and that lot no. 2 in the 13th range was drawn to the right of Ebenezer Fisk ; and also that all the proprietors agreed to and did appoint a committee to attend the legislature of this state, and procure the act of the legislature, offered in evidence as aforesaid, to confirm the said division so made as aforesaid. To which records, the publication of the warning of the proprietors’ meeting in one newspaper only, the act of the legislature, and the parol evidence, thus offered as aforesaid, the defendants objected, as illegal and impertinent evidence to be given to the jury in the trial. The objection was overruled by the court, and the evidence admitted.
    In charge, the court, among other things, instructed the jury, that, as the defendant had not disclaimed, but had put the plaintiff on proof of title,if the plaintiff had succeeded in shewing title in himself, he would be intitled to a verdict, with nominal damages, notwithstanding he had not shown the defendants in possession. And thereupon a verdict was returned for the plaintiff and accepted by the court: To which decision and charge the defendants excepted, &c.” -
    
      Sargeant, for the defendants.
    
    1st. The defendants insist, that the plaintiff has shown no title to the lands in question. There is no consideration expressed in the deed from Fisk to Bishop. The expression, “ for good consideration me thereunto moving,” is no consideration. The consideration, required in a deed, may be a good consideration, as, love and affection, — some mention of an act done, — or a valuable consideration, as a sum of money, — or some article of value, — which implies a quid pro qico ; and must be so expressed in the deed. — 3 Com. Dig. 278 ; 4 Cruise’s Dig. 27 ; 4 Binney, 21 ; 16 Johns. Rep. 47 ; 3 Conn. Rep. 398, Rogers vs. Millhouse ; I Co. Mr. 12 ;2 do. 15; Hunt vs. Maynard, 6Pick. Rep. 492,
    
      The deed from Bishop to Stevens was not proved according; to , , r , T . itny known principle ol statute,or common Jaw. It wasnotshewn that the subscribing witness was dead,or without the reach of process ofprocessg^ from the court ; nor was the hand writing of Bishop attempted to be proved. On this point, let the following authorities be examined. — 1 Archb. Practice, J41, 145 ; 1 Starkie’s Ev. 337, 340 ; Peake’s JY. P. 0, 31 ; -2 Esp. Cases, 240 ; 7 Term. Rep. 266 ; 3 Camp. 31, 232; Bull. JY. P. 2-55,; Peake’s Ev. 100-3-13-34. The age of the deed is no evidence of its execution, unless it is accompanied by possession. — 1 Starkie’s Ev. 66-7-8, 345, note 1 ; 1 Camp. 309, 311.
    To entitle a plaintiff to recover, he must show that he has a legal interest or estate in the land ; also a right of entry ; and that the defendant had committed a trespass, or was wrongfully in possession. — Adams Ejectment, 247 — 9. This has been the uniform mode since the alteration of the form of action by statute in this state. In the present case, the court permitted the plaintiff to take a verdict, and yet leave the very gist of the issue unproved ; which took the defendants by surprise. If the legislature ever contemplated that a plaintiff in ejectment should recover without proving so material an allegation in the declaration, why have they required the courts to certify whether the possession be wilful or not ?
    On the next point, the defendants having shown themselves tenants in common of the lands in Winhall, the plaintiff undertakes to show a division. To effect a division our statute points out a simple and easy course. When a statute -declares how a thing shall be done, it must be done in thatway, and that strictly, altho’ there be no negative words. Th-j record read, under the objection of defendants, does not show the statute complied with, either in publication -of the warrant, (being in one paper only,) or in any other particular ; but records a set of proceedings unknown to any law. Again. The act of confirmation does not help the plaintiff. Such an act has in no other case been admitted, unless it appear from the act itself, that all persons interested, acquiesced in it. ' The act purports arbitrarily to make valid, what has been done in violation of a public general statute ; and varies the interest and rights of individuals. It is a private act, and retrospective in its operation. It varies and totally changes vested ■rights.
    
      
      Bennet and Aikens, for the plaintiff.
    
    I. It is said the deed of Fisk, ought not to have been admitted in evidence, it not importing have been executed upon consideration. The expression is, upon “good consideration.” But if the deed was executed without consideration, the Jegal estate passed to the grantee,though it might be in trust.—1 Swiff's Dig. 121; 2 Black. Com. 296. Besides, the objection is made as to the admissibility of the deed, and we think, if the question was as to the equitable estate, the deed would be admissible, and the true consideration might be averred and proved. — 1 Shep. T. 222; 1 Phil.Ev. 424; Dyer, 169.
    H. As to the objection of Bishopfs deed, we answer, the deed was executed in 1770, at Newbaven, Conn.; the grantor then residing there. As this deed was executed before the revolution, it is to be governed by the laws of England, and, by those laws, no acknowledgement was necessary. — 2 Bla. Com. 309, 338, 323; 1 Shep. Touch. 203, 221, 320 ; G Mass. Rep. 24 ; 14 do. 491; 7 do. 384. As to its execution, we say the deed proved itself, by its great antiquity. — See Philip's Ev. 350; 5 Term Rep. 259 ; 9 Johns. 171 ; 10 do. 477 ; 2 Esp. Rep. 666. It is said, it is true, that possession must follow the deed ; but this can only apply to cultivated lands, and where there is a possession in fact, and not to wild lands. Besides, the deed was recorded in 1784, which shows it then to have been in being; and the other facts given in evidence, accompanying the deed, were competent to go to the jury, from which it might be left with them to infer the genuineness of the deed. They show an abandonment of all right on the part of Bishop, and the exercise of all proper acts of ownership by Stevens, according to the nature of the property. The witnesses to ancient deeds are supposed to be dead ; and, in the present case, must be presumed to be out of the state, if living. Witnesses to ancient deeds need not be produced,though shown to be living, — 1 Philip's Ev. 343.
    
    III. We see no objection to the division of the 13th and 14th ranges. The testimony offered tended to show, that all the proprietors were present, and agreed upon the division, and they all united in procuring the act of 1799, confirming it. No objection can be made to this act, if all in interest procured it to be passed.. A statute may become binding upon a corporate body,or individuals, by subsequent assent ; and if so, most clearly it would be binding, where the act was procured by the party to be affected by it.
    
      IV. The case shows no title whatever to any lands in common with the plaintiff in Winhall. It barely states that the deeds and records, produced in evidence, tended to show a legal title in the defendants to the original right of Moses Lyman. If the court have decided wrong in regard to the evidence in respect to the division, they will not grant a new trial. If the records and deeds were a part of the case, they would show no title.
    V. The charge of the court, we think, correct. By the statute of 1797, (p. 85. s. 89,) in the action of ejectment the defendant “ shall answer for such part of the premises, only, as he shall dis- “ tinguish and set forth in his plea, and disclaim the remainder ; “ and if he disclaim the whole, the delendant shall recover his “ costs, unless the plaintiff shall prove him in possession of the “ whole or a part of the premises.” By a fair construction of this statute, if the defendants do not disclaim, the trial proceeds on the title ; if they disclaim, then on the possession. This is a most salutary construction, and, as we understand, adopted by the judges of this court upon consultation, though we know of no judicial determination. Without this construction, the statute is senseless, and without meaning : for, at the common law, the defendants would recover their costs against the plaintifi, unless the plaintiff prove the defendants to have been in possession of the whole or a part of the premises.
   The opinion of the court was pronounced by

Hutchinson, C. J.

If there were any validity in the objection to the deed from Ebenezer Fisk to Samuel Bishop, jun., it should not operate to exclude the deed irom the jury, unless to await some testimony, from which a valid consideration might be inferred; for this testimony, when adduced, must be weighed by the jury. And the case recites testimony from which the jury might well infer an abundant consideration. Some of this testimony applies, as well to the deed from Bishop to Stevens, as to that from Fisk to Bishop. It appears, that this deed from Fisk to Bishop bears date in the year 1763 ; and Bishop’s deed to Stevens, in the year 1770. Also, that Stevens always claimed a right to act, and was always permitted to act, in all proprietors’ meetings, as owner of this right of Ebenezer Fisk; and no other person for more than sixty years, has ever laid any claim to this right. Whatever claim the defendant has to any land in said town, is a claim to another right. It also appears, that Stevens has paid three taxes upon this right; one in 1802; one in 1806; and one in 1810. Here was a total abandonment by Fisk, from the time he conveyed to Bishop; and a well known claim of Stevens sufficiently ancient to afford the presumption of a grant, or so many and such grants, as would vest the title in Stevens, and more so still, to afford the presumption of a valid and satisfactory consideration for Fisk’s deed of 1768, and the execution of the deed to Stevens of 1770. Moreover,the deed to Stevens has certified upon it a proof to its execution, before a justice of the peace, by the oath of one of the subscribing witnessess, in the year 1784 ; and another certificate of its being recorded afterwards in the same year. We know of no authority in a justice of the peace to take and certify such proof. Yet those certificates tend to show that the deed was then in existence. This was above forty five years ago. We consider both deeds correctly admitted ; and, there being no exception to the charge with regard to them, we must presume that the court gave the jury correct instructions upon the testimony in this behalf. We ought however to notice another point urged against the deed to Stevens, to wit, that it ought to have been acknowledged before it could be read. It has been often decided, that deeds executed before any statute, in force here, required acknowledgement, may be proved like any ■other writings, without acknowledgement. The statute attaches a benefit to acknowledgement and recording : and this benefit cannot be enjoyed, without a compliance with the statute. Yet a deed in existence, and good to vest an estate, before the statute, cannot be rendered void by the statute-; but the estate must be holden, and the deed proved, in the same manner as if the statute had never passed.

The testimony, offered by the defendant to show, that he owned a right of land in town, and of course was tenant in common with the plaintiff, was admitted without objection. This drove the plaintiff to prove a division of the land into severalty, and an allotment of the lot in question to this right of Fisk. The testimony, offered for this purpose, was objected to, but admitted. This testimony comes short of showing a division, legal in its origin. But we consider the testimony admissible to show a practical division. There was a proprietors’ meeting warned and hol-den ; but the advertisements, warning the same, were not published according to law. Yet the meeting was holden with.all the'proprietors'present, and a division upon paper agreed upon, and a plan made, presenting a view of all the lots in the thirteenth and fourteenth ranges, enough for one to each proprietor; and a draft made : and this lot, no. 2 in the 13th range, was drawn to the right then owned by Stevens, the plaintiff’s intestate. The case states no actual survey of the land into lots ; but shows the data, by which any lot might be surveyed with accuracy. Here was a sufficient division in fact, to be rendered legally binding by acquiescence of the proprietors. The application for the statute of 1799, confirming these proceedings as a division, was at least the commencement ofan acquiescence. The statute was procured, declaring such confirmation ; and no further attempt is shown to make any other division of the lands, comprised' in those divisions named in the statute.

We need not decide upon the validity of this statute, to produce the effect contemplated by it. For, if it were not thus valid, all these proceedings, standing as above named, over fifteen years, indeed, about thirty years, establish the division too firmly to be now shaken.

The only remaining point regards the plaintiff’s right to recover, without proving the defendant in possession of the premises. The county court seem to have considered, that the defendant’s pleading the general issue, with no disclaimer, was admitting his possession. We think this not a correct view of the statute. The declaration, following our statute form, charges, that the plaintiff, at such a time, was seized of the premises, and that the defendant, without law or right, thereinto entered, and ejected, expelled and amoved the plaintiff therefrom, and hath ever since kept, and still keeps, the plaintiff from the premises, taking the' whole profits to himself. The defendant pleaded that he was not guilty, in manner and form as the plaintiff hath alleged. Now, according to every genera] rule of pleading, this plea puts the plaintiff upon the proof of his whole declaration. It seems a very direct denial of those things, charged as tortious acts in the defendant; the chief of. which are, his ejecting the plaintiff, and taking, and keeping, possession himself. We must now enquire, whether this natural effect of the plea is varied by the statute, relating to a disclaimer. This statute is’found on page 85th, section 89th. And it appears to contain one provision, favorable to the plaintiff*, and one, favorable to the defendant. The first is, that the plaintiff shall not have his writ abated, by omitting to sue all the tenants, who may be upon the land he discribes in his declaration. He owns a tract of land, of which several persons have wrongfully obtained possession. He brings his action against all he finds .there, or against all he recollects, when his writ is filled ; but omits some who are not made defendants. This omission cannot abate his writ. But, if the statute stopped here, it would injustice to the other party, in many cases. The same statute, section 88th, provides, that the plaintiff, if he recovers, shall recover as well his damages as the seizin or possession of the premises. If, then, the plaintiff sues but half the persons, who are on the land he describes in his declaration, and those, sued, cannot abate the writ,and the plaintiff recovers,of the half,the damages done by all, it would be a hardship that would require relief. This was foreseen by the legislature, and they made provision, in the 89th section, that the defendant shall answer for such parts of the premises only as he shall distinguish by his plea, and disclaim the remainder. That is, he may disclaim all connection with that part of the land, possessed by others, and with which he has never intermeddled, and plead not guilty as to the rest. The trial will then proceed, as if none were described in the declaration, except that possessed by the defendant, and he is safe from any damages on account of the possessions of others. This provision is equally necessary, where all the persons on the premises are sued, but they do not possess jointly. Their possessions being several, it would be unjust to force upon them a joint liability for the whole possessions. Under this provision of the statute, each may disclaim that possessed by the other, and be liable only for the injury done by himself. But this 89th section is of no use, and has no application to any case, where one defendant only is sued, and his liability extends alike over all the premises described in the plaintiff’s declaration.

This statute has interposed a barrier against any injury to the plaintiff from a wrongful disclaimer. For, if plaintiff proves defendant to be in possession of all or a part of that which be disclaims, the issue,quoad hoc, must be found for the plaintiff But if the defendant disclaims the whole, he must recover his cost, unless the plaintiff can prove him in possession of the whole or a part. The necessary construction of this statute seems to be, that a disclaimer admits the plaintiff’s title to the part disclaimed, and puts the possession only in issue: but a general plea of not guilty puts in issue both title and possession. The Court are not satisfied, that they have the power to preclude the defendant from putting the whole declaration in issue by his general plea.

We suppose the practice to comport with our present views upon this point. Asa Porter brought an action for the whole town of Corinth, and sued a part only of the inhabitants. They plead ed severally the general issue only. The circuit court held the plain tiff to proof of possession. Several recovered their cost through want of such proof. General Mattocks and myself were employed to defend a suit in the circuit court. We pleaded the general issue. The proof was, that the defendant took possession oí the lot sued for, in the fall, and began clearing, and building a house, but abandoned the premises before the action was brought. The court decided that this evidence did not support the action. Several cases have been so decided in the county courts, and not carried up. But one case has,been carried up which was decided in the year 1817. See Brayton's Rep. 70, Everts vs. Dunton et al. In this, there were five defendants, and they severally pleaded not guilty. The testimony showed but two in possession. The court charged, as in this case, that ii the jury found for the plain' tiff, they might find all the defendants guilty. The Supreme Court decided, in bank, that the plaintiff could recover against those defendants only, who were proved to be in possession, and a new trial was granted.

The result is, that, on account of the instructions to the jury, upon this point of possession, the judgement of the county court is reversed, and

A new trial granted.  