
    * Naphtali Newhall versus Elizabeth Hopkins.
    Uf the evidence m an action of entry sur disseisin.
    
    [An actual seisin of the ancestor, within the time alleged m the writ, being proved, the tenant must show a rightful entry; but acquiescence for more than twenty years in the adverse possession and enjoyment of such tenant, is primó facie evidence of a rightful entry and possession under a lost deed. — En.j
    This was a writ of entry sur disseisin, in which the demandant counted upon the seisin of Josiah Newhall, his grandfather, within fifty years, and upon a disseisin of the said Josiah by Alexander Hopkins, who demised the same to the tenant. The land demanded is described in the writ as being in the rear of a certain dwelling-house, and as being about twenty feet in length, and in width two feet six inches at one end, and one foot at the other end.
    The tenant pleaded the general issue, that the said Alexander did not disseise the said Josiah, in manner and form as the demandant has complained, &c., which, being joined by the demand-ant, was tried, November term, 1806, before Parker, J.; from whose report it appears, that the demandant proved the seisin of his ancestor Josiah, on which he relied, only by the testimony of Henry Ncivhall, the brother of said Josiah, who stated that, more than forty years before the time when he testified, his brother Josiah owned and occupied the south-westerly part of a certain house and land, which their father, Elcazar Newhall, had before owned, and the noi tb-easterly part of which the said Eleazar had conveyed to the witness, who had understood that the said Eleazar had conveyed the part occupied by said Josiah to him. He further stated that his brother Josiah lived there about fifteen years, and that, during all that time, a fence ran from the centre of the rear of the house, on a line with the division wall of the same, to the rear of the lot, and that this fence was always considered by him and his brother to be the true division line between them; and that the said Alexander Hopkins afterwards built the fence farther in upon the south-westerly side, so as to enclose within his yard the land now demanded.
    
      No deed from Eleazar to Josiah was produced ; but it was proved that the books in which deeds were recorded from the 24 th of December, 1767, to the 5th of July, 1768, and from the [* 351 ] 27th of December, 1768, to the 19th of May, * 1769, have been missing from the office of the register of deeds for this county more than thirty years.
    The tenant claimed to hold the land demanded under conveyances, derivatively, from Henry Newhall, the witness, of the northwesterly part of the messuage formerly belonging to Eleazar New-. hall. Alexander Hopkins, who is alleged to be the disseisor, acquired the title to Henry Newhall’s part in 1766, at which time Josiah Newhall was in possession of the other part of the messuage. The person who erected the fence, which the witness Henry New-hall stated to encroach upon the land of Josiah, was produced as a witness by the tenant; and he testified that he built that fence twenty-eight or twenty-nine years before the time of the trial, and that no person forbade him, or directed him as to the line upon which it should be built.
    Upon these facts, the judge’s charge to the jury was in substance as follows : — That the demandant had left his case exceedingly barren of evidence, having shown no title to the land in question, but depending altogether upon an entry and occupation by his ancestor, many years ago; that, although the demandant had proved by a witness an actual seisin of the premises demanded in his ancestor, within the time set forth in the writ, such seisin might have been without right, and if so, he did not remain long enough in possession to acquire the right of possession; it being proved that Alexander Hopkins, who held the estate formerly of Henry Newhall, had entered upon him within twenty years after said Josiah became so seised. That the seisin of the said Josiah might have been originally wrongful, and if they could find, from the long continuance of the fence as it now stands, without complaint by those whose rights would have been prejudiced had it been improperly placed, or from any other evidence in the case, that the land demanded really belonged to that part of the estate of Eleasar Newhall which had come through Henry Newhall to the tenant, they had a right to find that the entry of Alexander Hopkins, alleged in the writ, was not a disseisin of the said Josiah * Newhall, but a lawful entry upon his own land, his [*352] right of entry not being lost, provided the title was in him. The judge also observed to the jury, that, the demandant having shown nothing but the mere possession of his ancestor for fifteen years, without producing any evidence of title, he did not think, under the circumstances of the case, that he was entitled to recover, but that the jury were to judge of the evidence, and return such a verdict as they should judge to be right upon the merits of the case.
    The jury found a verdict for the tenant; and the demandant moved for a new trial on the ground of the judge’s misdirection to the jury. The objections to the direction, as stated in the motion for a new trial, were, principally, that, the demandant having proved an actual seisin in his ancestor within fifty years, and the tenant not having offered any evidence tending to prove a right of entry in Alexander Hopkins at the time of the disseisin alleged, the demand-ant was entitled to a verdict; but the judge, notwithstanding, did not so direct the jury, but left it to them, under all the circumstances of the case, to find a verdict for the tenant, if they should think fit so to do. And that the judge further instructed the jury, that a mere actual seisin of the demandant’s ancestor named in the writ, without some evidence of the right of the ancestor so seised, was not sufficient to support this action, unless it were continued for some length of time.
    The cause stood continued upon this motion until March term, 1808, when it was argued by Jackson for the demandant, and Sullivan for the tenant.
    
      Jackson, in support of the motion for a new trial, insisted that, when the demandant had proved an actual seisin in the ancestor named in the writ, and within the time therein alleged, such evidence was prima facie sufficient, and could only be rebutted by proving a right of entry in the person named in the writ as the disseisor. Such seisin, although altogether without right, and of however short * duration, is sufficient against all [ * 353 ] the world, except the party first disseised and his heirs. Thus, if A disseise B, and within twenty years, or one year, C disseise A, the latter may maintain his writ of entry against C, and it is no excuse for him, that the original entry by A was without right. 
    
    
      A writ of entry is calculated to disprove the title of the tenant, by showing the wrongful commencement of it, “ rightly concluding that, if the original title was wrongful, all claims derived from thence must participate of the same wrong.” It is not even averred in the writ or count, nor necessary to be proved by the demandant, that he had a good title, or a lawful, indefeasible estate. This principle will appear very clear, and the reason of it obvious, if we suppose a recent case instead of one so ancient as the case at bar. Suppose Josiah Newhall to be now in quiet possession of the land in question, and that Hopkins should this day enter and oust him ; it is manifest that Hopkins takes upon himself the burden of proving his right to make this entry. The party entering pursues his claim in that mode, and is in fact actor, like the plaintiff in any action at law. It is clear, then, that, if Josiah Newhall should to-morrow bring his writ of entry against Hopkins for the ouster here supposed, it would be sufficient for him to prove his own prior possession, in order to put Hopkins to show why he disturbed it Would it be sufficient for him to say that Newhall bad not a good title to the land, that his possession had wrongfully commenced within twenty years, or within any other period ? The answer would be obvious; it is the common learning of the country, that my possession, however wrongful, shall not be disturbed by i stranger. If this would be the rule in case of an action brought to-morrow, the same rule would apply to the same action whenever brought, unless barred by the statute of limitations, which allows the heir fifty years to bring this action ; and to say that the long continuance of possession under the ouster [ * 854 ] fortifies * the title of the tenant, and constitutes a legal defence, is attempting to be wiser than the law, which enacts that nothing less than fifty years possession shall be sufficient for this purpose.
    The supposed wrongful entry of Hopkins is the gist of the action, and the only defence that can be made on the general issue is to show that it was not wrongful, or that he had a right of entry. Put the case that Hopkins, instead of entering when he did, had deferred it to this time, and were now to consult counsel as to his remedy. On examining his claim, the first question would be, whether he had now a right of entry. If his right and title to the land were ever so clear and indisputable, yet if, from lapse of time, or any other cause, his right of entry were tolled, his counsel would advise him to commence an action. On the other principle, his remedy by bare entry would be equivalent to a writ of right, A man, having any sort of title or claim to land, might always enter, and, if sued; he might go into his whole title in his defence; and it he proved the “ most mere right,” he would prevail. This would abrogate and render nugatory all the learning as to the right of entry, and even our own statute limiting the exercise of that right For there is no other way of enforcing those rules but by a reentry, which would introduce endless confusion and quarrelling, as it may be continually repeated by each party ; or by a writ of entry, which , is calculated to test the propriety and legality of the entry.
    It is contended that, even if the jury had been satisfied, from any of the evidence in the case, that the land demanded really belonged to that part of the estate of Eleazar Newhall, which had come through Henry Newhall to the tenant, this was not sufficient to authorize them to find that Alexander Hopkins did not disseise the demand-ant’s ancestor. Because, although Eleazar Newhall or Henry New-hall might have had a right of entry upon Josiah New-hall, they could not convey that right to Hopkins; *and [ # 355 ] there is no room for a presumption that Hopkins had ever acquired the actual possession, lawfully and peaceably, from or through Henry Newhall. On the contrary, it was expressly proved by his testimony, and not contradicted, that, when he made the deed under which Hopkins claimed, he, Henry Newhall, was not seised of the demanded premises, but Josiah Newhall was seised. 
    
    
      Sullivan, for the tenant, contended that Henry Newhall was improperly admitted as a witness at the trial. He was sworn to contradict the effect and operation of a deed in which he was the grantee, and also of a deed conveying a title from himself;  and although his admission was not objected to at the trial, yet, if it is now apparent to the Court that he ought not to have been received, they will put his testimony out of the case; and but for his testimony, the demandant would be without a shadow of title to support his action. But as his testimony was before the jury, they were the proper judges of its credibility; and there is nothing to show that they gave the least possible credit to it. On this ground, then, there is no occasion for a new trial.
    But if he was properly admitted, and was a competent witness he did not prove the seisin of the demandant’s ancestor, so as to entitle the demandant to recover in this action. Although the writ of entry does not meddle with the right of property, yet the tenant may justify his entry by reason of title in himself; and the land is to be awarded to him who produces the clearest right to possess it.  This writ shows the demandant’s title, and disproves the tenant’s possession by means of his entry.  As, in persona! actions, the proof of what the plaintiff sets forth in his writ, and is material to his claim, must lie on him, so, in this case, the demandant must prove his ancestor seised, and himself to have that right under his ancestor which he alleges in his writ.
    Seisin means, not a mere naked possession or occupancy, but a tenancy of the freehold; and if the ancestor had [ * 356 ] * less than a freehold, the heir is not entitled to his writ of entry; since no one can be disseised unless he was before seised. From the very learned argument of Lord Mansfield, in delivering the opinion of the court in the case of Taylor vs. Horde, 
       it is apparent that the positions of Littleton, relied on by the demandant, are applicable to the assize of novel disseisin, in which the demandant might elect to consider himself disseised, and do not apply to the more ancient writ of entry sur disseisin. The same point is confirmed by the court in the case of Doe vs. Horde. 
       From these authorities it is very clear that the demand-ant must show his ancestor to have had a freehold estate; he must show a title, which is tantamount to the investiture of former times If a naked possession only be shown, it may as well be presumed an estate by sufferance at will, or for years, as a freehold; and, indeed, if a freehold need not be shown, the descendant of any one who occupied only as tenant at will is entitled to his writ of entry on his ancestor’s seisin, and may put a tenant, who has an undoubted title, to the vexation and expense of a lawsuit.
    The action stood over until this term for advisement; and now the opinion of the Court (except the chief justice, who did not sit in the cause) was delivered by
    
      
       3 Black. Comm. 180, 182, 194. —Lit. sec. 486, 7. — Co. Lit. 283, b, 369, a.
      
    
    
      
       Vide Lit. sec. 347.— Co. Lit. 214, a, 266, a, 369, a. — Plow. 88. — 2 Black. Com 290. — 10 Co. 48.
    
    
      
      
        Cowp. Rep. 600.
    
    
      
       3 Black. Com. 180.
    
    
      
      
        Finch, 261
    
    
      
       1 Burr. 107, 111.
    
    
      
      
        Cowp. 701.
    
   Parker, J.

[After stating briefly the facts from his report, as above recited.] These are all the facts material to the point upon which the decision of the Court will turn. The question presented is, whether, from this evidence, the jury ought to have been instructed by the judge, that the building of the fence was a disseisin of Josiah Newhall of the fexv feet of land in controversy.

It is certainly true, as has been argued, with much technical learning, by the counsel for the demandant, that, if an actual seisin of the ancestor was proved within the time alleged in the writ, the tenant is put to show a rightful entry xvhen the fence was built, or the verdict ought to be against him. But the actual seisin [ * 357 ] was proved no otherwise * than by the testimony of Henry Newhall. It is true, he swore positively as to the location of the fence when his brother Josiah was in possession ; the location of the fence when his brother Josiah was in possession, and that it has been placed in a different position by Hoplcins. But it ought to be considered that the witness was testifying of a fact forty years before; that this fact was of a nature not to admit of a precise recollection ; and that the difference between the position of the fence then and now is so small, that a witness, however upright in his intentions, may well be mistaken.

Under these circumstances, the jury were not bound by the testimony of the witness, if there was any fact in the case creating a presumption inconsistent with his testimony. Now, the jury, had before them the fact of the fence having been erected as it now stands very near thirty years ; that it was built without any opposition from the persons occupying Josiah New hall's part of the messuage; and that no person showed the workman where to place the fence ; from which it may be presumed he was directed merely to rebuild and repair it, and that he governed himself by the line of the old fence. In addition to this, the persons, who have since owned and occupied the several parts of the house and the yards, have acquiesced for nearly thirty years in the present situation of the fence; and none among the various owners appear to have complained, until the person for whose use this action was brought became interested in the land, which is of recent date.

Under all the circumstances of the case, we are satisfied with the directions given to the jury, that they might weigh all the evidence, and determine whether a seisin had been proved, as alleged in the writ, and, if proved, whether the circumstances under which an entry by Hopkins was made, did not satisfy them, that the former possession of Josiah Neiohall was wrongful or by mistake; * and that the line was established by the mutual consent of [ * 358 ] the parties, at the time when the fence which has been so long acquiesced in was built.

The verdict appears to the Court to be conformable to the justice of the case, and not against law ; so that judgment must be entered upon it. 
      
       It was understood, at the trial, that this suit was instituted for the benefit of one Isaac Jefferson, who had purchased the demandant’s estate.
     
      
       [See Walcott & Al. vs. Knight & Al., post, 418. —Ed.]
     