
    THORNDIKE v. BARRETT.
    Where the proprietors of a large tract of land had conveyed a parcel to R, T. by metes and bounds, and also contracted to sell him an adjoining parcel, •which, under that contract, he had entered upon and enclosed within fences, —and afterwards they conveyed to W. M. “ all their unappropriated lands” in the same tract, bounding it in part “ on land of R. T.” whose deed was not then on record; — it was holden that the lands thus possessed by R. T. were “ appropriated,” and did not pass to W. M.
    
    The lands of a person deceased, of which he was disseised actually and not colourably at the time of his death, arenot liable for the payment of his debts.
    This was a writ of entry in which the demandant counted on his own seisin within thirty years, and a disseisin by the tenant ; and it was tried upon the general issue, at the last October term in this county.
    The demandant, to prove the issue on his part, read in evidence a deed to himself from Mary Molineaux, administratrix on the estate of William Molineaux, dated September 11,1818, and a licence from the Common Pleas to her for that purpose. He also proved that after the date of his deed and before the commencement of this action, he entered peaceably into the land, the tenant opposing and forbidding him for the sole purpose of trying his title.
    The tenant then read in evidence a deed of the premises 'from one Joseph Pierce to him, dated April 1,1817; and proved that at the date of the demandant’s deed, the tenant was in fact in possession of the land, having it enclosed in fence and under cultivation. He also read a deed from the Twenty Associates, dated February Id, 1806, conveying the premises to Pierce, his grantor.
    The demandant then offered in evidence a deed dated September 14, 1790, from one John Molyneaux in his capacity of clerk to the Twenty Associates, and by virtue of divers votes of the proprietary therein recited, conveying to said William a large tract of land called Beauchamp Neck containing jive hundred acres, of which the premises were a part; it being the same deed mentioned in Barrett v. Thorndike, 1 Greenl. 73. and on which the standing committee of the proprietors had certified their approbation. This deed recited a vote of the proprietors September 23,1785, directing the sale of Beauchamp Neck by the standing committee; — a vote of the standing committee October 31, 1785, mentioning that several offers had been made for ' Beauchamp N'eck “ supposed to contain about jive hundred acres,” and accepting the offer of W. Molyneaux it being the highest, and thereupon voting to sell him “ all the unappropriated lands on “ Beauchamp Neck, he paying six shillings per acre;” — another vote of the proprietors December 12, 1789, in which the two preceding votes were recognized, and the clerk directed to make out to Molyneaux “ a good and lawful deed agreeably to the “ usual forms in like cases practised,” he having “ complied with “the conditions as per account settled the fourth instant;”— also a prior vote of the proprietors passed May 13, 1768, empowering the clerk to execute any deeds which the standing committee shall judge necessary for conveying any lands of the proprietors, to be approved by an indorsement by at least two of the committee in writing, on the deed ; — and then proceeded to convey the lands, describing them as bounded “ northwest “on land of Abraham Ogier, and land of Robert Thorndike con- “ tabling fifty acres, and a pond.” To this the tenant objected, that it purported to be, not the deed of the proprietors, but of John Molyneaux, who did not appear to have any interest in the land; — and if not, yet the recitals in the deed were not the proper evidence of his authority to convey. He also offered to prove that in one of the recitals in the deed there had been a fraudulent alteration of the word/owr hundred to five hundred acres, by which the authority of the deed, as evidence of the vote, was wholly destroyed. But the presiding Judge overruled this objection, and admitted the deed.
    ■ The demandant also read a deed from the Twenty Associates to Robert Thorndike of fifty acres of land, dated November 9, 1768, and recorded January 21, 1794.
    The tenant then offered to prove that the alteration of the word/our to five was made by William Molyneaux himself, and that he had also fraudulently interlined the words “ containing “ 50 acres” in the description of the land, and to shew the materiality of the alterations, he further offered to prove that at the date of the deed to Molyneaux and long before, Robert !Thorndike was in possession of the demanded premises, adjoining his fifty acres, having the land inclosed in fences and under actual improvement, under a contract with the Twenty Associates for the purchase of it; that no line had then been run between the demanded premises and the fifty acres ; and that (he land in dispute, as well as the fifty acres, was commonly called in that neighbourhood Robert Thorndike’s land, and that this was well known to all parties. He also offered to prove that William Molyneaux was never in the actual possession of the premises, but that Thorndike continued to occupy the same till the deed to Pierce, and that Pierce entered and occupied till he conveyed to the tenant. He also offered to read a copy of the judgment in trespass in the case, of Barrett v. Thorndike rendered for the present tenant upon a final trial; — also an account settled by William Molyneaux with the Twenty Associates in which he credited them with the price of the Beauchamp Neck, us containing four hundred acres.
    All this evidence was rejected by the presiding Judge.
    
      It also appeared that Robert Thorndike always denied and resisted the claim of William Molyneaux to the demanded premises, but never pretended to hold in opposition to the right of the Twenty Associates; from whom in 1804 he took a lease of the premises for the term of one year.
    The tenant then contended that, inasmuch as he was in the open and visible possession and occupation of the premises at the time of the execution of the deed from the administratrix to the demandant, nothing passed by this deed ;■ — but the Judge overruled this objection, and instructed the jury that by the original conveyance from the Twenty Associates to William Molyneaux the demanded premises passed to the grantee, and that the demandant had maintained his action ; and they found for the demandant. The verdict was taken subject to the opinion of the whole Court upon the correctness of the opinions of the presiding Judge, in admitting or rejecting the evidence aforesaid, as stated in his report of the trial.
    
      Orr, Fessenden, arid Wheeler, for the defendant.
    1. Nothing passed by the deed from the administratrix to the demandant, because her husband was never actually seised of the land. Thorndike having held adversely from the year 1790, the right of entry in Molyneaux was gone. He always resisted the latter’s right to the land. Atkyns v. Horde, 1 Burr. 107. Co. Lit. 29. a. 153. a. 1 Taunt. 588. 3 Bl. Com. 176. Prop’rs of Mo. 6 v. M’Farland, 12 Mass. 325. Or if the intestate was ever seised, yet he died disseised, and so the land was not liable for the payment of his debts. Mason v. Willard, 5 Mass. 240. Poor v. Robinson, 10 Mass. 131. Boylstm v. Carver, 4 Mass. 607.
    2. The deed from John Molyneaux conveyed nothing, it not being in terms the deed of the proprietors. If he had authority to convey, it was never properly executed. Stinchfeld v. Little, 1 Greenl. 231. dwell v. Shaw, 16 Mass. 42. But he had no authority, the recital of the votes in the deed being not the proper evidence of the fact. 1 Phil. Evid. 319 — 321.
    3. If, however, these recitals might be sufficient under other circumstances, yet the deed being materially altered, all its credit is destroyed. And the tenant ought to have been admitted to prove these alterations. The existence of a deed to Thorndike was not conclusive evidence of the extent of the. land called his, since he claimed and held within fences the adjoining land under a contract, the land being thereby “ appropriated,” and so not within the deed to Molyneaux. And so Molyneaux understood it, or he would not afterwards have altered his own deed. These parts were proveable by parol. Slorer v. Freeman, 6 Mass. 435. King v. King, 7 Mass. 496. Albee v. Ward, 8 Mass. 83. Townsend v. Weld, 8 Mass. 146. Leland v. Stone, 10 Mass. 459. Adams v. Frothingham, 3 Mass. 352.
    4. The deed to Molyneaux was obtained by fraud, and is therefore void. It appears from his account settled with the proprietors at Boston that he was their agent for the suiwey and care of these remote lands; and that he falsely represented the Neck to contain but 400 acres, when in truth it contained at least Jive hundred. A deed thus obtained by imposition and fraud ought not to be received as evidence of title; — and the grantors might well convey the lands to another. Smithwickv. Jordan, 15 Mass. 113.
    
      Longfellow, Greenleaf, and Thayer, for the demandant.
    1. The recitals in the deed are good evidence, prima facie, of the votes of the proprietors, especially after this lapse of time, if not, they may be considered as certified by the clerk, his-signature being upon the deed. And the original vote directing the clerk to convey is a prospective ratification and adoption of such deed as he might make and the standing committee approve. If the authority was defectively executed, it is cured by Slat. 1823. ch. 228.
    2. By the land of Thorndike, mentioned in the deed, must be understood the land he owned, which could only be known by reference to his title-deed. The parol evidence offered would have contradicted this, and was therefore inadmissible ; or, if not, it was not the best evidence of the fact. Slorer v. Freeman, 6 Mass. 440. Crosby v. Parker, 4 Mass. 110.
    3. Of the estate thus conveyed William Molyneaux was seised. The lease from the proprietors to Thorndike in 1804 was an admission of their seisin, which instantly enured to the benefit of their grantee ; whose seisin both the parties to the lease are thereby estopped to deny. If not, yet the demandant entered under his own deed, which he might well do, the right of the intestate being conveyed thereby. Drinkwaler v. Drink-•water, 4 Mass. 354.
    4. The alterations have been decided to be immaterial, and not to affect the title to the estate. Barrett v. Thorndike, 1 Greenl. 73. And it does not appear but that the quantity was truly represented at four hundred acres.
   Weston J.

delivered the judgment of the Court as follows.

Whatever may be the true construction and effect of the deed of the fourteenth of September 1790, purporting to convey to William Molyneaux, the title of the Twenty Associates to the lands therein described, it does not appear that the said William, in his life time ever had the actual occupation of the premises demanded. Admitting the land in controversy to have been included in, and to have passed by, this deed ; yet it appears that this effect was contested by the grantors. Robert Thorn-dike then in possession under them, continued to occupy the premises, denying and resisting the claim of Molyneaux. ' In this he was supported, as the tenant offered to prove, by the Twenty Associates, who recognized and claimed Thorndike as their tenant; and in February 1806, actually conveyed the land In question to Joseph Pierce in fee, who, by his agent, took possession of the same, which was continued until he sold to the present tenant, who has ever since had the exclusive possession and occupancy of the demanded premises; claiming to hold them as his own. William Molyneaux therefore became disseised, if he ever was in fact seised; and this disseisin must be considered as having commenced soon after the date of his deed. The grantor cannot lawfully enter upon and oust his grantee, but such act would notwithstanding be a disseisin, as much as if committed by a stranger.

It is true that in a comparison of title, if the deed to William Molyneaux passed the premises, the subsequent adverse possession of Robert Thorndike, and of Joseph Pierce and his grantee, would be found to have been tortious. Each deducing his right from the same origin, Molyneaux's, as the more ancient, must have prevailed. But the disseisin, would continue until it was purged or extinguished by peaceable entry, or by judgment of law. It does not appear that Molunaaux availed himself of either of these remedies. He died therefore disseised. He in his life time, while the disseisin continued, could not by law have passed his right to a stranger. Could his personal representative do so, upon his decease? If she could not, then however well founded the right of the intestate may have been, the. title of the demandant fails.

It is insisted that under a license of Court duly obtained, the administratrix might lawfully sell the right of the intestate; and that it was competent for the demandant, as the purchaser to enter upon the premises and to demand the same in a suit at law, as he has now done, counting upon his own seisin. The case of Drinkwater v. Drinkwater, 4 Mass. 354. is relied upon as an authority justifying this course. Chief Justice Parsons, in delivering the opinion of the Court there says, “ if the-lands “ are liable to the payment of the intestate’s debts, he (the ad- “ ministrator) may lawfully sell them on license, whether they “ are in the possession of the heir, or of his alienee or disseisor. “ For no seisin of the heir, or of his alienee, or-of his disseisor, “ can defeat the naked authority of the administrator to sell on “ license.” But this reasoning is predicated on the assumption that the intestate died seised. In the case of Willard v. Nason, 5 Mass. 240. the same learned Judge, commenting as the organ of the Court, upon the statute of Massachusetts, under the authority of which the sale was made to the demandant in this action, remarks that “ it may be further observed that the “ lands of a person deceased are not liable for the payment of “ his debts, unless he died seised of them, or had fraudulently “ conveyed them, or was colourably and fraudulently disseised “ of them, with the intent to defraud his creditors.” And this is the language also of the fifth section of the statute of Masses chusetts 1805. ch. 90. and of the revised statutes of this State, ch. 72. sec. 1.

Thus it clearly appears that the lands of a person deceased^ of which he was disseised actually and not colourably, at the time of his death, are not made liable for the payment of his d<bts. The land in question, if it ever belonged to the intesi-it-N being thus circumstanced, it results that the license obiainecl by the administratrix of William Molyneaux did not extend to this land; and that the demandant could derive no title under her deed.

By the deed to William Molyneaux, it is recited that the standing committee of the Twenty Associates, at a meeting holden on the thirty-first of October 1785, agreed to accept the offer of the said William, and to sell to him all the unappropriated lands on Beauchamp Neck; and it is further recited that at another meeting of the same committee, the said William having complied with the conditions on his part to be performed, the committee, referring to their agreement before mentioned, voted that the clerk of the propriety should make out a good and sufficient deed to the said William of the said Beauchamp Neck, according to the usual forms. The tenant offered to prove that at and before the date of that deed, Robert Thorndike was in possession of the demanded premises by distinct metes and bounds, fences and actual improvements, under a contract from the Twenty Associates for the purchase of the same. This contract, and the actual possession of Thorndike under it, must be , considered as an appropriation of this land, within the true intent and meaning of the agreement recited. Of this appropriation neither the Twenty Associates nor William Molyneaux, from the nature of Thorndike’s possession, could be ignorant. It could not have been understood, by either of the parties, that the vote of the committee extendejd to the sale of this land which, if made, would deprive the propriety of the power to fulfil their contract with Thorndike; and thus render themselves liable to answer in damages to him for its violation. To appropriate, is to consign or set apart to a particular use or destination. This was virtually done by the contract with Thorn-dike, who had thereupon entered into the actual possession and enjoyment of the land in question ; his title to which was to become consummate and indefeasible, upon the performance of certain conditions on his part.

But it is contended that the tract conveyed, being bounded on Robert Thorndike’s land, this must be construed to mean the fifty acres which he actually owned, and not that which he had only contracted for; and the case of Crosby v. Parker, 4 Mass. 110, is cited to support this position. Crosby was there bounded by Joseph Wilson’s land. Wilson owned one piece and had contracted for, and was in possession of, another adjoining; and the Court held that Crosby’s title extended to the former. One of the reasons assigned by the Court for their opinion is, that Wilson’s first purchase was “ all the land of which he had “ any title on record, by which the tenant could ascertain the boundaries.” In the case before us it appears that Thorndike’s deed of the fifty acres, was not recorded until some years after the execution of the deed in question. But the most material difference between the two cases is, that the committee of the Twenty Associates agreed to sell only the unappropriated land. By construing the “ land of Robert Thorndike,” as expressed in the deed, to mean as well that which he occupied and possessed under contract to purchase, as that which had actually been conveyed to him, the unappropriated land alone passed, in conformity with the manifest intention of the parties. But if, by this boundary, we are to understand the fifty acres, it would embrace land which the grantors had before appropriated, by their contract with Thorndike. By the former construction every part of the deed is consistent; and embraces all which the parties could have contemplated.

That the grantee thus understood it, if any further evidence were necessary, the tenant offered to prove that after the execution of the deed, he fraudulently inserted therein after the words “ land of Robert Thorndike’’ the words “ containing fifty acres;” thereby plainly indicating his consciousness that his title could not extend to Thorndike’s fifty acres, without these additional words.

We are, for these reasons, of opinion that the evidence rejected, tending to shew what tvas meant by Robert Thorndike’s land, ought to have been admitted; and upon this ground as well as from the want of authority in Mary Molyneaux to sell this land, for the reasons before stated, the verdict is set aside, and a

New trial granted„  