
    Douglas and another against Valentine.
    NFW-YOB.K,
    Nov. 1810.
    ín an action oí trespass guare clausum fregiti brought before a justice’s court, the defendant interposed a plea of title, and the same was removed into the court of common pleas, and. from thence into this court; and it was held, that under the 7lU section of the act, 51st sess* c. 204. the defendant, at the trial,might show a title in himself, or a title in a aposse^on^out “L!'where" <lef!ni¡¡mt m such action pro* Ted> tllat,he waa and linfl npf»n in and had been in possession of the locus in quo for more than six years; and the plaintiff never had been in pos.session; this was held sufficient evidence to entitle the defendant to a verdict.
    THIS was an action of trespass quare clausum fregit, for breaking and entering the close of the plaintiffs, the 18th day of May, 1809, and the grass there growing treading down, depasturing, ploughing and consuming, and also for beating, bruising and injuring the plaintiffs’ cattle, and driving and turning them out of the same close, on the 20th May aforesaid. The suit was originally commenced in a justice’s court, in the county of Delaware, and the defendant, in pursuance of the statute, interposed a plea of title, for lot No. 2. in the patent of Kortright, being the locus in quo, upon which a suit was commenced in the Delaware court of common pleas, and after issue was joined upon such plea, the same was removed to this court, by consent of parties, without prejudice, or changing the rights of the parties, as they stood in the court below.
    The cause was tried at the Delaware circuit, in June, 1810, before Mr. Justice Thompson.
    
    The defendant, under his plea of title, proved that he was and had been in possession of the premises for upwards of six years. The plaintiffs had never been in possession further than having the key of the house occupied by a tenant of the defendant, who, on leaving the r . J ' ’ ’ . , . - premises, in March, 1809, delivered the key to the plaintiffs,
    The defendant also gave in evidence a lease,for eücr,from John Kortright, who was admitted to be the owner of the premises, to Alexander Sealy, for the premises in question, and an assignment from Sealy to the defendant»
    The plaintiffs then gave in evidence an assignment from the defendant to Lotty Valentine, dated the 29th November, 1809, by which, in consideration of one thoúsand dollars, the defendant assigned over to her all his right and title to the premises ; on condition, that if the said L. V. should pay a certain note given by her to the defendant for 1,000 dollars, payable on the 1st November, 1807, then the assignment was to be valid, otherwise to be void. The plaintiffs produced an assignment endorsed on the same instrument by Charles McMullen, and Lotty his wife, formerly Lotty Valentine, to the plaintiffs, dated 14th January, 1809. But this assignment being objected to, the judge decided it to be insufficient, unless the plaintiffs showed that the condition of the original assignment had been performed.
    The plaintiffs then produced the original note of Lotty Valentine, referred to in the condition of the defendant’s assignment, with the name torn from it; and proved that she resided in the family of the defendant, on the premises, until her marriage with McMullen.
    
    This evidence was objected to as insufficient, but the judge decided that it was sufficient, prima facie, to show a performance of the condition. The defendant objected that his possession was adverse to McMullen, and that the assignment from McMullen and wife to the plaintiffs was, therefore, inoperative ; but the judge overruled the • objection. The defendant then proved thát the plaintiffs were his neighbours; and the witnesses believed that they knew of the condition of the assignment, when they took the assignment from McMullen and wife.
    
      
      McMullen had never been in possession of the premises, but had brought an action of ejectment against Valentine, to recover the possession, which has been pending about two years ; but the judge considered this evidence as insufficient to bring home to the plaintiffs a knowledge of the condition of the original assignment.
    The defendant then offered to prove that no part of the note for 1,000 dollars had ever been paid; that on the 3d March, 1808, the defendant and McMullen agreed that the latter should take up the note for 1,000 dollars, and give his own note to the plaintiffs for 800 dollars, payable the 1st May, 1809, which was then supposed to be the value of the premises; and that the condition of the assignment should be extended to the 800 dollars, instead of the note for 1,000 dollars; that the latter note was accordingly given up, and McMullen gave his own note for 800 dollars, which the defendant offered to produce, and show to be wholly unpaid ; but there being no proof that the plaintiffs knew these facts, at the time of the assignment to them, the judge rejected the evidence offered, and directed the jury to find a verdict for the plaintiffs for six cents damages, and the jury found a verdict accordingly.
    A motion was made to set aside the verdict, and for a new trial, for the misdirection of the judge.
    
      Sherwood and Sudam, for the defendant.
    The plaintiffs were bound to show a possession in themselves, at the time of bringing the action; but the defendant has shown a possession in another. - It may, perhaps, be objected, that the defendant cannot set up a possession out of the plaintiffs ; but the words of the act are clear and explicit; “Provided, nevertheless, that it shall be competent to such defendant, notwithstanding the said plea of title, to show on the trial of any such cause, before any court of common pleas, that the plaintiff’ had not possession of, or title to, the premises, at the time such supposed trespass was committed. The case of Strong v. Smith,
      
       turned on a point of pleading, and not on the construction of the statute, which must be conclusive.
    The assignment from the defendant to his daughter was conditional; and whether the condition was precedent or subsequent, it has failed. If it was a precedent condition, no perforniance was shown; if a subsequent condition, a performance within the time was not proved; so that the estate is at an end. As the defendant con? turned in possession, no entry or claim was necessary to defeat the estate. The party was bound to perform the condition literally. No subsequent parol assent or silent acquiescence, can destroy the effect of an express condition in a deed.
    
    Again, as the possession of the defendant was adverse, the conveyance by McMullen and wife to the plaintiffs was inoperative and void,
    
      E. Williams, contra.
    By pleading title the defendant admits the trespass. It was on this ground that the cause was removed to the court of common pleas. If the trespass is admitted, the possession of the plaintiffs is admitted; and the only question is whether the defendant has a title. The fact of possession is not in issue. This point was expressly decided in Strong v. Smith. But the plaintiffs did show a possession. They proved that the tenant, when he left the premises, delivered the key of the house to them.
    Again, the conveyance from the defendant was operative. The condition has been performed. The payment of the note was proved by producing it in court cancel-led. The only person who could take advantage of a breach of the condition has accepted the payment of the note, and surrendered it to be cancelled. The estate then became absolute in the grantee ; and there could be no adverse possession in the defendant.
    
      
       2 Caines Rep. 28.
    
    
      
       Slst sess. c. 204. s. 7.
    
    
      
       2 Caines Rep. 28.
    
    
      
       Co. Litt. 216. b. 2 Bl. Comm. 157. Co. Litt. 218. b. Cruise's Dig. til. 13. c. 2. s. 24.
    
    
      
      
         1 Johns. Cas. 126.
    
   Per Curiam.

As this cause came from a justice’s court, ‘ e it was subject to the regulations contained in the act relative to justices5 courts. (Laws, 31st sess. c. 204. s. 7.) That act provides, “ that it shall be competent to the defendant, notwithstanding his. plea of title, to show on the trial, &c. that the plaintiff had not possession of, or title to, the premises, at the time such supposed trespass was committed.” The defendant then might have shown three things, either of which would have entitled him to a verdict; viz. title in himself, title in a third person, or possession out of the plaintiffs. The case of Strong v. Smith, (2 Caines’ Rep. 28.) never was intended to lay down any proposition contrary to this, nor does it appear to. The decision in that case was, that the plea of the general issue should be struck out, because the fact of the entry upon the close in question, and of treading down the grass, or taking and carrying away the timber, &c. was admitted by the plea interposed before the justice and brought into the court above! It is there said, that the defendant may show title in himself or a stranger. The case does not happen to say that he may also contravene the possession of the plaintiff, nor does it deny it. The substance of that decision was, that the plaintiff was not to be called upon to prove the trespass or actual commission of the fact; and that the plea of title was prima facie evidence of possession, and sufficient to throw it upon the defendant to prove the contrary.

In this case the defendant proved that he was in possession of the premises, and had been so for upwards of six years, and that the plaintiffs never had any possession, except that a tenant of the defendant delivered them a key of the house in March, 1809. This act of the tenant did not, and could not, in the least, prejudice the possession of the defendant; and indeed, every attornment of a tenant to a stranger is void. This proof was declared upon the trial not to be sufficient for the defence. But as it appears to be a right allowed to every such defendant, by the act, to show that the plaintiff had not possession, the defendant showed enough to entitle him to a verdict. Though the parties afterwards went into testimony on the question of title,-there was nothing shown to contradict, but the evidence went to confirm the fact, that-the plaintiffs never had possession, for they purchased of one McMullen, who had never been in possession, but had brought an ejectment against the defendant, and which had been then pending about two years.

Onthis ground, then, and without reference to the title, the verdict ought to be set aside, and a new trial awarded? with costs to abide the event.

New trial granted.  