
    * Enoch Poor and Others versus Thomas Robinson
    With the exception of a collateral warranty, every thing else may be given in evidence upon the general issue in a writ of right Thus release given to the tenant by some of the demandants, after the commencement of the suit, was holden to be admissible evidence for the tenant.
    One disseised of lands, by his last will ordered his executors to sell all his out-lands, &c., fur the payment of his debts, &c., and made two of Ms sons execu tors, and died disseised. The executors released the testator’s right in the lands to the tenant in possession. It was holden that the executors had no authority, under the will, to pass the right to those lands; but that the release would avail to pass the rights of the executors as children and heirs oi the testator.
    This is a writ of right, in which the said Enoch Poor, Caleb Poor, Thomas Poor, Hannah Whittier, Phcebe Plummer, Sarah Poor, Nancy Robinson, Susan Frye, and Polly Lovejoy, demand two lots of land in Bridgetown, in this county, numbered seven and eight. The demandants count on the seisin of their late father, Thomas Poor, deceased, within sixty years next before the date of their writ; and allege that he was disseised of the said lands in his lifetime, and died seised of the right thereto, which descended to them.
    Issue being joined on the right, a trial was had, October term; 1811, in this county, before Thatcher, J.
    The demandants proved that Thomas Poor, their grandfather, within said sixty years was seised in fee of the demanded premises, and, being so seised, conveyed the same to his son, Thomas Poor, father of the demandants, byhis deed, dated the 16th of March, 1768, but not registered until after the commencement of this suit, who entered and became seised, and died leaving the demandants his children and heirs at law.
    The tenant, to maintain the issue on his part, read to the jury a deed, dated the 24th of March, 1784, made by Thomas Perley, and hvo others, styling themselves a committee of the proprietors of Bridgetown, to Thomas Robinson, late father of the tenant; who proved that his said father entered upon the said lots under the said deed, and continued seised of the same, by paying the taxes and employing agents to take care thereof, until his death; but the tenant gave no evidence of any right or authority in said Perley, and others, to sell the land in their said capacity, other than appeared by the deed itself. The tenant further proved that he was one of the children and heirs at law of the said Thomas Robinson, deceased ; and that he had continued in possession of the said lots from the time of his father’s death, in the same manner that his father had done in his lifetime.
    
      *The tenant also produced, in evidence, a copy of the last will of the said Thomas Poor, father of the de-
    mandants, duly proved on the 3d of December, 1804 ; in which will the testator gave to Stephen Poor, one of his children not named in the writ, a small legacy in full of his share of the testator’s estate, and to each of his other children sundry lands oi- other property, and then devised as follows, viz.: “ I likewise will and order that my executors hereafter named shall, as soon as possible after my decease, sell all the remainder of my outlands, (except what lies in Methuen, and what lies in the town of Rumford, which is not disposed of,) to the best advantage they can, and with the proceeds thereof, together with what money I may have due to me on notes and on book, to discharge all my just debts, my funeral charges, and the costs of settling my estate ; and if any thing should remain of the proceeds of the sale of said lands, and of moneys due after my debts and charges as aforesaid are paid, the same shall be equally divided among all my children, (except my son Stephen, who has had his full share of my estate heretofore.) ”
    It appeared by said will, that Enoch Poor and Thomas Poor, two of the demandants, were appointed executors thereof; and that said Bridgetown lands were not devised or disposed of by said will, except in the foregoing clause thereof.
    The tenant then read to the jury (although objected to on the part of the demandants) a deed of release, made and executed by the said executors, in their said capacity, in which they state that, by virtue of the power given them in and by the said last will, and for the purposes in the said will expressed, they remise, release, and quitclaim, unto the said Robinson, the tenant, and several other persons, all the right, of which the testator died seised, in and to sundry lots of land in said Bridgetown, as in the deed to the father of the tenant above mentioned is described, including the two lots demanded in this action. The said deed of release was dated the 28th of September, 1811, and was duly acknowdedged, and seasonably recorded.
    ] *The demandants then gave in evidence the deposi tion of John Varnum, Esq., in which he testifies that, as
    attorney to the executors of Thomas Poor, the father of the demandants, he had been acquainted with many of the transactions relative to the settlement of the said Poor’s estate, and that many of the claims against said estate had passed through his hands; that a few years since it was reported that the said executors were in failing circumstances, and that all the estate of the said deceased was subject to a mortgage for the full value of the same ; that, as far as the witness’s knowledge extended, all the creditors to sa:d estate caused their claims to be liquidated or satisfactorily secured ; and, to his best knowledge and belief, there were not, at the time of giving his testimony, nor had been for a year before, any outstanding claims against the said estate.
    The counsel for the demandants contended that nothing passed by the said deed of release from the said executors; and that, if the estate did pass by that deed, it was not competent for the ten ant to give the same in evidence, to defeat the present action ; in asmuch as it was made and executed long since the commencement of the action.
    But the judge, who sat in the trial of the cause, instructed the jury, that the tenant, being proved to be in possession of the demanded premises, had a right to extinguish any real or pretended claim to the land, and was entitled to a verdict in his favor; and, a verdict being returned accordingly, the counsel for the demandant filed exceptions to the said instructions and opinion of the judge, and the action stood over to the last May term of this court in this county; when an argument was had by Mellen and Whitman for the demandants, and by Hopkins and Todd for the tenant; after which the cause was further continued for advisement; and now the opinion of the Court was pronounced by
   Sewall, J.

Enoch Poor and others, the demandants, in a plea of

land in the nature of a writ of right, declare upon the seisin of their ancestor within sixty years, and aver his death, and a descent of the right to them. The action is for two lots of land in Bridgetown. The tenant tenders an issue upon the right, which is joined.

* At the trial, the tenant relied principally upon a re- [ * 134 ] lease, obtained since the commencement of this action, from two of the demandants, Enoch Poor and Thomas Poor, whereby they, as executors of Thomas Poor, the father, and authorized by his will to sell all his outlands to the best advantage they can, and with the proceeds, &c., to discharge all his just debts, remise, release, and quitclaim, to the tenant all the right of which the testator died seised in and to his said lots in Bridgetown.

This release was admitted in evidence at the trial, and the jury were instructed to consider it as an extinguishment of the right and title of the demandants, supposed to be derived from their father; and the tenant obtained a verdict. The demandant excepted to the decision of the judge, and the parties have been fully heard upon these exceptions.

The release is said to be inadmissible, because it was evidence obtained after the commencement of the action; and it is argued that the rights of the parties are to be tried and determined as they were at that time; and that it is sufficient for the demandants, in maintaining this action, to prove themselves entitled when the suit was commenced; and that a conveyance of this nature is not to be received as evidence upon the general issue, but is to be pleaded.

- But we do not find this strictness warranted by the authorities. With the exception only of a collateral warranty, every thing else may "be given in evidence upon the general issue in a writ of right. The demandant ought not to prevail against his own release and extinguishment of title, granted to the tenant himself. It is not a collateral matter, or an advantage provided by statutes, which the tenant is at liberty to waive or insist on, as he pleases; but it goes to the merits of the question in issue, as directly as any evidence that can be offered.

In the case of Everenden vs. Beaumont, in our reports, a release, obtained by the tenant after the commencement of the suit, was pleaded. But that was a writ of entry in the post; and the release, under those circumstances, might not have been [ * 135 ] proper evidence on the general issue * of non disseisimi.

The tenant in that case prevailed upon this plea; and it was not suggested to be an insufficient defence, on the ground that it was obtained after the commencement of the suit. If, notwithstanding that objection, a release is a sufficient defence, being pleaded, it must avail also as evidence upon the general issue.

In Bird vs. Randall, reported by Burrow, which was an action of the case for enticing the plaintiff’s servant, a satisfaction paid by the servant after the commencement of the suit, and after the general issue pleaded by the defendant, was admitted as proper evidence to bar the plaintiff’s demand, as going to the merits of it, and not operating as a collateral matter.

Upon the whole, we think the release was properly admitted at the trial, as evidence for the tenant upon the general issue; notwithstanding the objection of its being obtained after the commencement of the suit,

There is, however, a further objection. The release not being by all the demandants, its operation as evidence remains to be considered. The authority of the two demandants, who are executors of Thomas Poor, to sell his outlands for the payment of his debts, is proved by the will. But it is objected that this authority was restricted to the payment of debts; and there was some evidence at the trial, from which it might have been inferred that the testator’s debts had been, before the date of this release, either discharged or at least compromised. This might be true, and yet the executors in advance for the estate, or personally liable; and the authority to them is general, and rather directed than limited, by the purpose to which the proceeds of the sale were to be applied. Besides, the testator supposes a sale exceeding the amount of his debts, because he further directs a distribution of the residue among his children and heirs.

There is, however, another objection, which we think conclusive against this release, as operating, by the authority given to the executors, in the will of Thomas Poor. It is, #that [ * 136 j it appears, by the other evidence produced for the tenant, that the testator had no seisin of the two lots in controversy at the time of making his will, or at the time of his death. The father of the tenant had entered under the deed to him from the committee of the proprietors of Bridgetown; and Thomas Poor, the testator, remained disseised at the time of his death.

Perhaps a devise of his right and interest to the disseisor by name, recognizing his possession, might have had its proper effect. But these lands, or the right of the testator in them, were not transferable or devisable to any other person ; and, as the purchaser from the executors must be in by the will, and is only to be nominated by their deed, we think the will in this respect, and under these circumstances, inoperative ; and that the executors had no authority thereby to sell these lands, or release the right of the testator. That this deed may avail under the authority devised to the executors, it is necessary to consider that devise as good to every purpose, and to any purchaser. The decision at the trial was in this respect erroneous, and there must be a new trial.

This being granted, there remains another question to be settled, which has been argued. Inoperative as the release by the executors was, as depending upon the authority devised to them, yet it is a release by two of the demandants ; and they, at least, are not now entitled, against their own bargain and contract with the tenant. So far the right descending from the testator is extinguished, and the title of the tenant is confirmed. And whether, after this, the other demandants can proceed upon this writ, is to be considered. They cannot without a summons and severance; and this remedy they would be entitled to, if a joinder of all the children had been necessary. But since the statute of 1785, c. 62, <§> 3, it is not necessary. And we are at present inclined to the opinion that the demandants must discontinue as to this action, and those who have -not released will be at liberty to begin anew.

* Thatcher, J., expressed his concurrence in the foregoing opinion, except so far as it decides the release

by the executors.to have been void.

The verdict being set aside, the demandants had leave to discontinue ; and judgment was rendered for

Costs for the tenant. 
      
       3 Wils. 420. — 3 Burr. 1353, Bird vs. Randall.—Doug. 112. — 3 D. & E. 188.
     
      
       7 Mass. Rep. 76.
     
      
      
         [Vide De Bret vs. Papillon, 4 East, 502. — Harris vs. James, 9 East, 82.-Saund. on Pl. and Ev. 723. — Ed.]
     
      
      
        Gilb. L. of Dev. 134,142.
     