
    Schwartz vs. Kuhn & al.
    
    Where one entered upon a part of a tract of Jand under a deed of the whole, from one having no title, and afterward received a deed from tlie disseisee of a large part of the same tract, the Court held, that it was a question for the consideration of the jury, whether the disseisor did not intend thereby, to yield and abandon his possessory title to the whole tract, on thus obtaining: a perfect title to a large part of it.
    Trespass, cjuare clausum fregit. The plaintiff derived title to the locus in quo from William Sullivan, by deed dated Feb. 5, 1822 ; and the principal question in the case was, whether at said time, Sullivan was so seised, as to be legally capable of conveying a good title. In regard to which it was proved, that in 1799, one Eugley entered upon a tract of land including the locus in quo, and lived upon and occupied a part of tbe tract under a deed from Jacob Benner, recorded in 1812, but no part of the locus in quo was actually occupied by him. It was also proved, that in October, 1808, John Gleason, as the attorney of Henry Jackson, then the owner of a large tract of 5000 acres, including the locus in quo, and under whom said Sullivan derived his title, entered upon said large tract and surveyed the same, and made a formal entry on it, and took possession thereof. And said Jackson in the same month entered and took possession in person, and gave notice to several of the settlers. But it did not appear that there was an entry on the land then in possession of Eugley in particular, or that notice was given to him. It further appeared that on the 8th of August, 1815, Eugley received a deed from Sullivan of a large part of the tract on which he had entered under Benner’s deed, not however including the locus in quo —and on the 16th of Sept. 1830, Eugley conveyed the whole to Kuhn, the principal defendant.
    The jury were instructed, that the entry by Gleason and Jackson in 1808, was sufficient to purge the disseizin committed by Eugley, and that the deed of Sullivan to the plaintiff, passed a good title to the locus in quo. They accordingly returned a verdict for the plaintiff, which was to be set aside if this instruction was not correct.
    
    
      Allen and Reed, for the defendants,
    cited Prop. Ken. Pur, v. Laboree, 9 Greenl. 275; Higbee v. Rice, 5 Mass. 344; Green v. Liter Sf als. 8 Cranch, 250 ; Stearns on Real Actions, 42.
    
      E. Smith, for the plaintiff,
    cited Lang don v. Potter &/• al. 13 Mass. 219; Cod,man v. Winslow, 10 Mass. 146; Stearns on Real Actions, 384; Brown v. Porter, 10 Mass. 100.
    
    
      
       A question was raised in regard to the construction of Sullivans deed to the plaintiff, but the Reporter not having been furnished with a copy of the deed or the plan referred to as making a part of the case, is unable to make a more full report than the foregoing.
    
   Mellen C. J.

delivered the opinion of the Court.

As both parties claim under Sullivan, both admit his original title. The case finds, that though the deed from Benner to Eugley of the large tract included the locus in quo, and though Eugley entered on the land, and has ever since lived on the westerly part of it, yet he was never in the actual possession of the locus in quo. Of course, Sullivan was not disseised of any part of the large tract, except that part which Eugley held in actual and exclusive possession, until his deed from Benner was registered in 1812. Then a disseizin'of Sullivan commenced. Therefore, no entry by Jackson, in 1808, was necessary to enable him to convey to the person under whom Sullivan held. We need not inquire whether such entry was sufficient to purge the disseizin, provided Jackson had then been disseised, because he was not disseised as to the locus in quo. For this reason, the instructions of the Judge, as to the legality and sufficiency of Jackson’s entry may be laid out of the case as wholly immaterial in the decision of the cause. After Eugley’s deed was registered, it is clear that Sullivan could not convey to a third person any part of the tract described in Benner’s deed, so long as the disseizin continued, which was created by the registry of that deed and Eugley’s open and permanent possession of a part of the tract conveyed by the deed. Prop. Ken. Purchase v. Laboree, 2 Greenl. 275, and cases there cited; Little v. Megquier, ib. 176; Gookin v. Whittier, 4 Greenl. 16. Still, he might well sell and convey all or any part of the tract above-mentioned to Eugley, the disseisor, without violating any principle of law or public policy, and therefore, by Sullivan’s conveyance to him, he acquired an indefeasible title to the land described in the deed. As to this there can be no question ; but under certain circumstances, the transaction might have legally been followed by other consequences, in reference to the residue of the tract conveyed by Benner’s deed, which deserve serious consideration, but seem not to have received it. Now, if by the above arrangement between him and Sullivan, the intention was, that the possessory title of Eugley in the whole tract, should be yielded and abandoned to Sullivan, for the sake of obtaining from him a perfect legal title as to a large part of the tract, the effect would have been to give complete operation to Sullivan’s deed to Schwartz, which unquestionably, in its description, embraces the locus in quo. There are many reasons for presuming this to have been the true character of the above-mentioned arrangement. In the case of Fox &f al. v. Widgery, 4 Greenl. 214, it appeared that Storer was supposed to be sole owner of the whole tract of land, whereof partition was prayed — being in possession and claiming the whole; but, in truth, the title to a part of it belonged to the heirs of Titcomb. In this situation of things, Widgery, the ancestor of the respondent, levied his execution in due form on the whole tract as the estate of Storer. Afterwards, Widgery purchased the title of. six of the heirs, and applied to another heir to purchase his. The Judge who tried the cause, ruled that Widgery’s acceptance of those deeds and application for a deed from another, amounted to a waiver of all possessory claims, and put an end to any supposed disseizin of the true owners: and that after he had purchased of six heirs of Tit-comb, he must be considered as holding in common with the seventh heir. On a question reserved, the Court set aside the verdict, saying, “ The question, whether it was in fact or in- “ tended to be a waiver or abandonment of those rights,” (acquired by the supposed disseizin) was one proper for the con- sideration of the jury, and which, as such, should have been “ submitted to their decision, it being a question of intention.” A title by disseizin is not a subject of favour in a court of law, and the character of the transaction above-mentioned, as to the conveyance from Sullivan to Eugley, seems not to have been considered by the Court and jury, but their attention was distinctly drawn in another direction by the instruction of the Judge as to the legality and effect of Jackson's entry, which instruction, though unimportant in respect to the real merits of the cause, as we have before stated, we are satisfied was incor-. rect: Such being the situation in which the parties stand before us, we think that the question of intention in making the arrangement between Sullivan and Eugley should be submitted to a jury in order to ascertain whether Eugley's disseizin was thereby purged and completely done away, as to the whole of the tract conveyed to him by Benner, according to the decision in Fox & al. v. Widgery — accordingly, the verdict is set aside and a new trial granted.  