
    John Tilson versus Arioch Thompson.
    A reversioner is not obliged to enter during the life of tenant for life, for a disseisin of such tenant or a forfeiture for waste, but a new right of entry accrues to him at the death of such tenant.
    There being a regular record in the probate court, of an assignment of dower, such assignment, in the absence of all positive proof either way, will be presumed to have been made with the knowledge and upon the application of the widow.
    No title to land can be claimed under a deed from a collector of taxes, unless the deed has been acknowledged and recorded.
    Writ of entry sur disseisin for fourteen and a half acres of land in Plympton. Plea, nul disseisin.
    
    At the trial, before Morton J., it appeared in evidence, that before the year 1780 Zechariah Stan dish died seised of the demanded premises, leaving a widow, Olive Standish, to whom the premises, together with fourteen and a half acres of other land adjoining, were in 1780 assigned as dower by order of the judge of probate. Soon after the assignment Olive removed to the western part of the Commonwealth, and afterward to the State of Vermont, where she died on November 28th, 1826, having been previously married to a second husband.
    
      Zechariah Standish left six children, heirs to his estate. Two of them died without issue, soon after the death of their father. The demandant purchased all the rights of three of the surviving heirs, to the reversion of the land assigned for dower, ni connexion with the residue of the farm, by several deeds, the last of which was in 1790. The tenant has lived on the farm ever since.
    On July 7th, 1789, a collector of taxes for the town of Plympton sold to G. Sowle and J. Hooper, for non-payment of taxes against the widow, eight acres of the twenty-nine set off for dower, which had been advertised for sale for the payment of taxes thereon. Soon after, Sowle and Hooper occupied each a separate half part of the land set off for dower ; Sowle occupying the demanded premises, and Hooper the adjoining fourteen and a half acres. On November 18th, 1789, Hooper released his interest to the demandant, who by his tenant has ever since occupied the released premises.
    On March 20th, 1792, Sowle conveyed the demanded premises to Samuel Lucas, in fee, with warranty.
    In 1803, J. Lowell; assignee of Isaiah Lucas, a bankrupt, conveyed the demanded premises-to W. Bosworth, who on May 3d, 1816, conveyed the same to Jabez Sowle in fee, with warranty ; and Jabez Sowle conveyed the same, in the same manner, on May 9th, 1826, to Dexter C. Thompson, who also, on May 15th, 1826, conveyed the same, in the same manner, to Arioch Thompson and Ichabod Thompson, and Ichabod conveyed to Arioch, the tenant, on March 2d, 1827.
    The grantees in the several deeds, were severally in possession after the making of the deeds.
    A witness deposed, that in 1795, while the demanded premises were in the possession of Samuel Lucas, the witness and the tenant of the demandant cut and coaled about twenty cords of wood on the demanded premises, and also cut and carried away some timber, which were all the wood and timber then on the premises, for which they paid Samuel Lucas. About ten years ago the witness cut eight or ten cords of wood on the premises, which he took to himself as firewood, in payment for his services in clearing up the land.
    Isaiah Lucas was the son of Samuel and survives him, but it did not appear how he claimed the estate, nor that he was ever in possession thereof. Samuel was living when Lowell’s deed was made.
    The eight acres sold by the collector to Sowle and Hooper, which were to be taken off the westerly side of the land set off as dower, would embrace a part of the demanded premises, and a part of the residue of the dower land. The deed from the collector was not acknowledged or recorded.
    The demandant offered the deed of Hooper to explain the possession which be had, of the fourteen and a half acres therein released, from the date of the deed to the present time, and the admission of it in evidence was objected to by the tenant.
    The tenant consented to be defaulted, the demandant agreeing that if the whole Court should be of opinion that the demandant was not entitled to recover, a nonsuit should be entered.
    
      Oct. 261ft.
    
      W. Baylies and Wood, for the tenant.
    The tenant and his predecessors have an indefeasible title, by the uninterrupted adverse possession of the demanded premises for more than forty years. It will be said, however, that the demandant was not obliged to assert his right during the life of the tenant in dower. To this we answer, that it does not appear that the widow was ever in the occupation of the land, or that the assignment of dower was made with her knowledge. Wallingford v. Hearl, 15 Mass. R. 471.
    The land, while in the hands of the tenant, has been managed in such a manner as to preclude any claim of right in the tenant in dower or in the demandant; or at least the reversion-er was bound to assert his title, there having been a forfeiture for waste committed.
    The deed of the collector, of part of the land, upon a sale for non-payment of taxes assessed upon it, conveyed a title to the tenant’s predecessor, which was valid against all persons.
    
      Eddy and Beal, contrà,
    
    as to the reversioner’s right of entry after the death of the tenant for life, cited Stevens v. Winship, 1 Pick. 327 ; Wells v. Prince, 9 Mass. R. 508 ; Carter v. Barnadiston, 1 P. Wms. 520 ; Jackson v. Schoonmaker, 4 Johns. R. 390 ; Barnadiston v. Carter, 3 Bro. C. C. 67; and to show that it should be presumed that the assignment of dower was made on the application of the widow, and that she had entered on the demanded premises, they cited Maynard v. Hunt, 5 Pick. 240; Shutesbury v. Oxford, 16 Mass. R. 103.
    
      Oct. 30th.
    
   Shaw C. J.

delivered the opinion of the Court. The demandant having established his title to three fourths of the premises, by a purchase of the reversion of three of the heirs, expectant upon the termination of the widow’s life estate, under her assignment of dower, is entitled to recover, unless a good defence can be shown.

The tenant relies upon an adverse possession of more than forty years, by himself and those under whom he claims, as a bar to the demandant’s right of entry.

Undoubtedly such an adverse possession would be a bar to any right which the demandant had at the commencement of such a disseisin ; but it is a well settled rule of law, that one claiming in reversion, though he may, if he will, take notice of any disseisin done to the tenant of the particular estate, is yet not obliged so to do, but may wait until his right of entry accrues, upon the death of the tenant for life, and may then enter, how long soever the particular tenant may have been disseised. Wells v. Prince, 9 Mass. R. 508; Wallingford v. Hearl, 15 Mass. R. 471. Indeed the reversioner has no means of knowing with reasonable certainty, whether the party in possession is in by disseisin, or under a title or license from the tenant of the particular estate ; and in the latter case he would have no right of entry.

Here it appears by the facts, that although the dower was assigned in 1780, yet the widow survived until 1826, almost half a century, and that the demandant lost no time in making his entry, after her decease. During the whole period therefore of the forty years relied on as a period of forty years’ adverse possession, the demandant either had no right of entry, or was not bound to exercise it, and of course the statute of limitations did-not run against him.

But it is contended, that it does not appear that the widow ever entered upon the premises, or even assented to the assignment of her dower.

But there being a regular record in the probate court, of the assignment of dower, in the absence of all positive proof either way, her assent to the assignment of dower is to be presumed. Indeed the presumption is, that the assignment was made upon her application, such being the usual course and the proceeding being for her benefit.

Sowle and Hooper took nothing by the collector’s deed to them; at least no title can be claimed under it for the tenant, inasmuch as it has never been acknowledged and registered. This, independently of all other considerations, renders it unavailing as evidence of title.

Although the deed by Sowle to Lucas, and the successive deeds down to Thompson the tenant, if they derived no title under the dowress, may severally have constituted disseisins, yet they were disseisins immediately of the life tenant, and not disseisins done to the present demandant, except at his election. The demandant was not bound to take notice of such disseisins, or to enter or bring his action, to avoid the effect of the statute of limitations.

As to the cutting of wood, and other alleged acts of waste incurring a forfeiture, the same rule applies which has been already stated ; that where the tenant in dower commits waste and thereby forfeits her estate, although he in reversion may enter to terminate the life estate and enforce the forfeiture, yet be is not bound to do so, and until he does the life estate continues. Then upon the death of the widow a new right of entry accrues, upon which he may enter and become seised, although his right of entry for the forfeiture may have been barred by lapse of time and the operation of the statute.

The demandant having established his title to three-fourths of the demanded premises, the tenant is to be defaulted, and judgment entered for such three fourths for the demandant. 
      
       See 2 Phil. Ev. (Cowen & Hill’s ed.) 304, 305.
     
      
      
         See Revised Stat. c. 119, § 3.
     