
    Sewall vs. Sewall.
    Upon the trial of a writ of right, the tenant gave in evidence a deed conveying-the premises from the demandant to a third person, in order to disprove the demandant’s right to recover; and evidence was also offered to show that previous to this conveyance the tenant had verbally admitted tile demandant's title as tenant in common with him, though he had, after the conveyance, denied it, claiming to hold the whole. The latter declarations, made after the conveyance, the Judge instructed the jury to disregard. And for this cause a new trial was granted, the evidence being proper for them to consider, as tending t© show the intent and evince the character of his previous occupancy.
    This was a writ of right, brought by Stephen Sewall against Joseph Sewall, upon his own seisin within twenty years, for one forty oigbth part of certain lauds. The title of the demandant was regularly deduced and proved, down to July 19, 1827, on which day, as it appeared from a deed offered by the tenant, he had conveyed all his right, litio and interest in the premises to David Wilcox. To show that he was disseised at the time of this conveyance and that therefore nothing passed by the deed, the demandant read the record of a partition, in the Common Pleas at February term, 1823, upon the petition of John Sewall and others, the demandant not being a party thereto, and having had no notice of its pendency, from which it appeared that the whole tract had been divided among the petitioners and others, and their parts set off in severalty, one moiety having been assigned to John Sewall, as bis share. This part he conveyed by deed of quitclaim, dated July 17, 1824, to the tenant, who afterwards entered into the same. The demandant contended that these proceedings, and the entry of the tenant under John Sewall’s deed, amounted to a disseisin ; and that not having entered at any time after the devise under which he claimed, he -,vas ousted, and nothing passed by his deed to Wilcox. Daniel Sewall, Esq. testified that in eight or ten different conversations with the tenant, since the conveyance of John Sewall to him, lie had admitted that tho demandant had a right in common in some part of the demanded premises, which he wished to purchase ; but that after the making of the deed from the demandant to Wilcox, the sonant denied any right in the demandant, and claimed to hold the whole, it also appeared that in October 1830, tho tenant had aliened all his right to a part of the land ho bought of John Sewall, describing it by metes and bounds.
    Tho demandant’s counsel requested the Chief Justice, before whom the action was tried, to instruct the jury that if they believed that the tenant, in his conversations with the witness, intended only to adroit the right of the demandant to the land, and not the fact that lie had entered or was in possession as a tenant in common with him, then the demandant was disseised at the time of making his deed to Wilcox, and therefore nothing passed by it, and the demandant was entitled to recover. The Chief Justice declined so to instruct them : but he did instruct them that if they believed, from the testimony, that the tenant, after she purchased of John Sewall, admitted that the demandant had a common right in some part of the tract, which he was desirous of purchasing, and that from that time till the making of the deed to Wilcox he did not claim to hold adversely to or in defiance of the title of the demandant, but in consistency therewith, there was nothing to prevent the operation of the deed to Wilcox, to whom the demandant’s title was thereby conveyed. He also instructed them to take no notice of that part of the testimony which related to the declarations made by the tenant after the date of the last mentioned deed.
    To which instructions the counsel for the demandant filed exceptions.
    
      D. Goodenow argued in support of the exceptions, and cited 3 Bl. Com. 179, 180.
    
      E. Shepley, for, the tenant,
    argued that his occupancy was in submission to some title in the demandant, and therefore did not defeat the operation of his deed. Kennebec Proprietors v. Laboree, 2 Greenl. 281; Commonwealth v. Dudley, 10 Mass. 406; Wells v. Prince, 4 Mass. 67; Cook v. Allen, 2 Mass. 470. The deed from John Sewall worked no disseisin, it being merely a conveyance of such interest as he might have in the property, and not an absolute conveyance of the fee. Fox v. Widgery, 4 Gr.eenl. 214. Nor is the reception of the whole profits by the tenant a disseisin, he being only a tenant in common. Barnard v. Pope, 14 Mass. 438. And the seisin of a cotenant is sufficient for a devisee; Brown v. Wood, 17 Mass. 74 ; as well as for an heir. Shumway v. Holbrook, 1 Pick. 116.
   The opinion of the Court was delivered at the ensuing term in Cumberland, by

Mellen C. J.

By the exceptions it appears that the title of the demandant was proved to have been good on the 19th day of July, 1827 ; but the tenant contends that on that day he sold and conveyed all his right, title and interest in the demanded premises to Wilcox, by his deed of that date. Unless he was disseised when he made the deed, the title passed to Wilcox, and the action fails. The jury under the directions given them, have found that ho was not disseised, The only question is whether they were properly instructed. John Sewall was seised of the tract of land assigned to him, and his title and seisin were conveyed to Joseph, the tenant, by deed dated July 17, 1826; Joseph went into possession under his deed and has ever since remained in possession. We think that the first instruction given to the jury, though not in the language as requested, nor merely oí’ the import of it, yet that it was more comprehensive, and included the requested instruction and was more explicit and intelligible ; presenting to their minds the grounds and principles on which they were to decide the question whether the possession of Joseph, of the premises in question, at the time of the conveyance to Wilcox, amounted to and constituted a disseisin. We do not perceive any incorrectness in the foregoing instruction. The next inquiry is whether the second instruction was proper. To answer this question we must examine the testimony of Daniel Sewall. He stated that in eight or ten conversations with Joseph Sewall, since the conveyance of John Sewall to him, he admitted that the demandant had a right in common in some part of the demanded premises, and that he wished to purchase it; but that after the conveyance to Wilcox, Joseph denied all right of the demandant and claimed to hold the whole. The admission of Stephen's right in common was good evidence to qualify the seisin and possession of Joseph, and prove that they were not adverse to, but in submission to the common seisin of Stephen; and his denial had a tendency to prove, and, in fact, was proof that his possession was adverse to the title of Stephen, and so was a disseisin. The evidence of the above denial, however, the Judge instructed the jury to disregard, which, in effect, amounted to an exclusion of that part of Mr. Sewall’s testimony. Now the difficulty is this. Mr. Sew-all refers only to two dates ; namely, the time of the conveyance from John Sewall to Joseph ; and the conveyance from Stephen to Wilcox; between which events or dates there is an interval of a year. it. does not appear how long before the deed to Wilcox was given, the above mentioned admissions of Joseph were made; or when he began to consider himself as holding adversely to Stephen and openly denying his right; it might have been many months before the conveyance to Wilcox; and that the denial of the demandant’s right had reference to his own possession and claim of the whole for months before the above conveyance was made. This, perhaps, may be an improbable fact; but being a matter of inference, it was proper for the consideration of the jury ; and though a disseisin committed by Joseph after the deed was made, would be a fact of no importance in this cause, or in any manner affect the operation of the deed, still the excluded evidence might have been considered by the jury as explanatory of the intentions of. Joseph before the conveyance was made and shewing him a desseisor at that time. On the whole, we are all of opinion that the last restrictive instruction was too limited and therefore incorrect.

Exceptions sustained ; verdict set aside ; and new trial granted.  