
    Sarah Dunbar versus Edward Mitchell.
    A person, appointed by the legislature guardian of all the Indians owning lends within a certain district, cannot defend in a writ of entry sur disseizin brought against him by any such Indian, under a plea of nul disseizin.
    
    This was a writ of entry sur disseizin, wherein the demandant claims the possession of the land described in her writ, and situated in Bridgewater, in the county of Plymouth, having counted upon her own seizin within thirty years, and a disseizin by the tenant; and issue was joined upon the plea, which denies the disseizin.
    At the trial of this issue, which was had at an adjournment of the last October term, in Plymouth, holden here by the Chief Justice m April last, it was admitted that one James, a native Indian, or aboriginal, was formerly seized of the land demanded, and that he died seized thereof, leaving a son, and a daughter named Hannah, who was the mother of the demandant; the said Hannah having been lawfully married to one Dunbar, and the demandant being the lawful issue of that marriage. The said Dunbar was a negro or mulatto, and the said Hannah was an Indian of. the whole blood. The demandant was born in the town of Stoughton, in the county of JVorfolk ; and from thence, soon after her birth, her father and mother removed to Randolph, in the same county. From thence they removed to the State of Vermont, carrying the demandant, then very young, with them. Her father and mother are since dead. She has continued to reside in the State of Vermont, and has never [ *374] been in Bridgewater, except on a visit before the * commencement of this suit, when she entered upon the demanded premises.
    The tenant defended under two resolves of the legislature, passed February, 1811, and February, 1814. The first of the said resolves appoints him guardian of all the Indians residing in Bridgewater and owning lands therein, with all the powers which are, by the laws of the Commonwealth, given to guardians in other cases ; provided he first gives sufficient bonds to the judge of probate, &c. The second of the said resolves recites, by way of preamble, that doubts had arisen, whether his power extended so far as to authorize or require him to take care of the land situated in Bridgewater, but not owned by Indians actually residing therein ; and thereupon provides that he be, and shall be considered to have been, made and appointed guardian by virtue of his former appointment, over all the Indians residing and owning lands in said town, and also over all the Indian lands situated therein, whether the owners thereof reside there or not ; provided, that such persons have not other guardians within this Commonwealth, and that he give bonds, &c., as before. The last resolve passed on the application of the tenant, after the commencement and during the pendency of this suit. The tenant had no other claim to the land demanded, but under said resolves.
    A verdict was taken for the demandant by consent, which was to be set aside, and the demandant to become nonsuit, if, in the opinion of the Court, the tenant ought by law to hold said land in virtue of the said resolves ; otherwise, judgment to be entered according to the verdict.
    The cause was argued by Sproat and Baylies, for the demandant, and by Thomas and Brown for the tenant;
    after which the opinion of the Court was delivered by
   Parker, C. J.

The defence set in this case is wholly inadmissible. The title of the demandant is denied by plea ; yet it is agreed in the case, that she is the lawful heir of James, who died seized of the land. The only claim shown by the tenant f*375] is an authority under certain * resolves of the legislature, appointing him guardian over the Indians residing in Bridgewater, or owning lands there. This authority does not vest any title in him to the land ; but merely empowers him to enter upon it, and to take the profits, and account for the disposition of them. If he can defend himself at all under these resolves, it must be by pleading non-tenure of the freehold, and setting forth the special interest which may entitle him to the possession against the demandant. Or, ;f he would object to the right of the demandant to maintain an action in her own name, because of the guardianship, he should have pleaded this matter in abatement to the writ.

The plea of mil disseizin puts in issue the title, and, if found for the tenant upon the evidence produced, would fix the title in him, although he has no pretence to be considered as owner of the land.

Whether the resolves produced by the tenant are constitutional or not need not, therefore, be considered ; it being apparent that they do not maintain the issue, which has been tried, in favor of the tenant.

Judgment according to the verdict. 
      
      
        Roscoe, Real Act. 191.
     
      
       Vide Higby vs. Rice, 5 Mass. Rep. 344. — Kelleran vs. Brown, 4 Mass. Rep. 443. — Pray vs. Pierce, 7 Mass. Rep. 381. — Alden vs. Murdoch, 13 Mass. Rep. 259. — Stevens et ux. vs. Winship et ux., 1 Pick. 318. — Vide Roscoe, Real Act. 229.
     