
    John Tolman versus Ebenezer Emerson.
    A deed appearing on the face of it to have been executed under an authority which is a matter of record, is not admissible, however ancient it may be, as evidence of title to land, without the production of the power or an authenticated copy. —So held in the case of a deed purporting to be made in 1744 by a committee of the General Court,
    A book of records of proprietors of common lands, which had formerly been in the possession of the grandfather of the witness producing it, and then for thirty years in the hands of the grandfather’s executor, from whom it came to the witness, v/as admitted in evidence; the presumption from lapse of time being, that the witness had the lawful custody of it, there being no evidence of the present existence of the proprietary with a clerk to keep their records, and no place being appointed by law for the deposit of such records when the proprietary becomes extinct.
    An entry on land by an attorney, for the purpose of making claim to it, is sufficient without a declaration of his authority, or of the purpose for which he enters, where there is no person on the premises claiming by an adverse title.
    This was a writ of entry, in which the demandant counted on his own seisin within thirty years. A trial was had before Putnam J. upon the general issue.
    The demandant offered in evidence a deed of a committee of the General Court, dated the 17th of December, 1744, to twenty purchasers, of whom Ehenezer Robins was one, of a large tract of land in what is now called Oxford South Gore. This was objected to on the part of the tenant, because the record of the authority to the committee to make the deed was not produced ; but the objection was overruled.
    The book of the proprietors (the grantees) was likewise offered by the demandant, as containing the records of the j roprietors. It had been formerly in the possession of a witness’s grandfather, whose executor had it thirty years, and from the executor it came into the hands of the witness. The hook, though objected to by the tenant, was admitted.
    Robins made a deed of his right to S. Dwight in 1745, and a location to Dwight by the proprietors in 1760 was shown by the book of records above mentioned. Dwight died about the year 1775, leaving six daughters his heirs The demandant claimed under deeds from three of them, made in 1808.
    Isaac King .testified, that in June 1807, he was requested by Elizabeth Waters and others, heirs of Dwight, “ to look up the land for them,” and that in the fall of 1807 he went uPon the land to survey and take possession of it, and that he took with him a surveyor and made a survey. A small portion of the land was cleared and fenced before King made his entry. It was contended on the part of the tenant, that this testimony did not prove an entry by the heirs of Dwight. But the jury were instructed, that if the witness did these acts xvith an intent to- make a claim to the land and to take the legal measures for its recovery, at the request and for the benefit of the heirs, it was a sufficient entry , and that no particular ceremony or form of words was necessary in making an entry into lands.
    
      Oct. 5th.
    
    The tenant defended on the ground, that he had a title from persons who entered as disseisors, and had held the land for forty years before this action was brought; and if there was (as he contended) an actual ouster of the heirs when they made their deeds, nothing passed to the demandant.
    The verdict was for the demandant.
    
      J. Davis and Mien, for the tenant,
    cited in regard to the admission of the deed from the committee of the General Court, Jackson v. Blanshan, 3 Johns. R. 292; Stockbridge v West Stockbridge, 14 Mass. R. 257.
    The book of records was inadmissible, unless it were proved to have been kept by, and to have remained in the custody of some agent of the proprietors, or at least of some person who was or had been interested in the common lands. 1 Stark, on Ev. 169 et seq., 182; Swinnerton v. Stafford, 3 Taunt. 91; Highland Turnp. Co. v. McKean, 10 Johns. R. 154.
    The heirs of Dwight made no legal entry. King had authority only to go on the land and make an examination. But if he was duly authorized to make a legal entry, as he did not at the time explain by what authority and for what purpose he entered, the entry was insufficient. He made no declaration from which it might be inferred that he was not a mere trespasser. Stearns on Real Actions, 45, 46, cites 1 Lili. Abr. 515 ; 3 Bl. Com. 174; Jac. Law Diet. tit. Entry.
    
    
      Newton, for the demandant.
    In regard to the deed of the ummittee, the antiquity of the transaction, and the circumstance that the tenant claimed no title except under a disseisin, afford a presumption of an authority to make the deed. Stockbridge v. West Stockbridge, ubi supra. He cited, as to the book of records, Monumoi v. Rogers, 1 Mass. R. 159 ; and as to the entry by King, Ford v. Grey, 6 Mod. 44.
    
      April term 1827.
   Parker C. J.

delivered the opinion of the Court. The general principle is, that where one claims under a deed or other instrument used in the conveyance of real estate, which appeal's on the face of it to have been executed by virtue of a power from the grantor, the power, or an authenticated copy of it, should be produced in evidence to support the deed, in order that it may be seen whether there was authority for the act, to the extent to which it is performed. But the same principles by which deeds may be admitted in evidence without proof of their execution, may be applied to the power under which it purports to be executed. In either case the deed is prima facie evidence of title, if possession of the premises purported to be granted has been taken and continued under the deed. 2It has been held, however, and I think justly, in New York, that this indulgence of the law, if it may be so called, is founded on the supposed loss, by death, of the regular evidence to prove the execution of a will or deed. So that if a subscribing witness be alive, he shall be called to prove the deed, although it be more than thirty years old. Jackson v. Blanshan, 3 Johns. R. 292. By analogy to this doctrine, if a power be recorded, so that the evidence is perpetuated, there can be no reason for admitting the deed without the power, however ancient it may be, for there is certain proof to be obtained, for which a mere presumption ought not to be substituted. For the presumption is of an authority co-extensive with the act; whereas the power may show a limited or particular authority which has been transgressed; and then the case would stand upon a presumption contrary to the fact, which fact it is entirely within the power of the party to prove.

The case before us is of a grant from the legislature by a committee. The authority must necessarily have been ex pressed and defined by a legislative act, which must of course be a matter of record, and the presumption is that the record exists, there being no evidence of any search for it in its proper place.

The plaintiff’s case stood well enough without that deed, provided the other objections raised at the trial cannot be sustained, and we are clear they cannot. The book of the proprietors was properly admitted in evidence, being traced down from the grandfather of the witness who produced it; the presumption from lapse of time being that he had the lawful custody of it; and there being no evidence of the present existence of the proprietary with a clerk to keep the books and records, and there being no place appointed by law for the deposit of such books when a proprietary becomes extinct. The title being deduced from the proprietors to Robins and from him to Dwight, and the location being made to Dwight of the lot in question, he became seised in virtue of that location, the lands being wild, and no actual use of them being common, for a considerable time after the title is acquired. A seisin in law descended to the children of Dwight, under whom the demandant claims ; so that the question raised at the trial properly occurred, whether they were seised in fact, when they made their several deeds.

The acts of King at their request we consider a sufficient entry to give them a legal possession of land, the lawful title to which was in them by descent. He was requested “ to look up the land for them.” He took a surveyor with him, and having found the lot which agreed with the description in the location, he surveyed and took possession of it for them, as he testifies. It is objected that he made no declaration of his purpose, or of the authority under which he acted. Now if any one had been on the premises claiming the land by adverse title or possession, such declaration might be necessary ; but it does not appear that it was occupied, or that any one was within hearing ; so that a declaration would have been vox et preterea nihil. Lex non cogit ad vana sen inutilia. Four or five acres of the land on which King entered were cleared and fenced, but the case does not present any evidence of the time when the fence was built or the land cleared ; and it ought not to be presumed that these acts had been done twenty years before, for the burden of proof was on the defendant to show a disseisin long enough continued to toll the right of entry.

But as the deed was admitted after objection of the wans of evidence of the power, and as the judge placed the basis of the demandant’s right upon that grant to the proprietors, we are ignorant what stress was laid on that evidence by the jury, in considering the weight of evidence upon the other points. We are therefore of opinion, that there must be a new trial, and we have answered the other objections with a view to present to the defendant the difficulties he will have to encounter, if he should continue his defence to the acton. 
      
       See 1 Stark. Ev. (5th Amer. ed.) 332, n. (1), and cases there collected; Waldron v. Tuttle, 4 N. Hamp. R. 371.
     
      
       But see Henthorn v. Shepherd, 1 Blackford 162; Jackson v. Christman, 4 Wendell, 277.
     
      
       See 1 Stark. Ev. (5th Amer. ed.) 202, 203.
     
      
       An entry into land to defeat a disseisin should be with, that intention, sufficiently indicated either by the act or by words accompanying it. Robison v. Smelt 3 Greenl. 316.
     