
    Farrar & al. vs. Eastman & al.
    
    A sale and conveyance of Proprietary lands by a Collector of taxes, thereto authorised by a vote of the proprietors, passed March 23, 1780, was held to pass no title, —forty days not having elapsed between the giving of the authority and the execution of it, pursuant to the Provincial act of 26 Geo. 2. Jinc. Char.
    
    If one receive a deed of several distinct and separate lots of land from one having no title, — cause his deed to be recorded, — and enter upon and occupy a part of one only of the lots, under his deed, — it will not constitute a disseizin of the t/ue owner of the other lots, so as thereby to render his deed thereof to a stranger inoperative; though it be a mere release without covenants.
    Whether a tenant in common can he disseised by a stranger claiming his interest only,— queer e.
    
    Trespass quare clausum fregit, for cutting trees on lot No. 43, in 5th division of lands in the town of Lovell. The defendants pleaded the general issue, and also soil and freehold in one Levi Stearns, under whom they cut.
    To maintain the action the plaintiiTs’ counsel read from the records of the Proprietors of Lovell, the acceptance of a Report of the lotting committee, dated Sept. 23, 1817, by which it appeared that lot 43 was drawn to the original Right of Benjamin Ballard. He also introduced and read the following deeds, viz '. Benjamin Ballard to Samuel Farrar, dated Sept. 22, 1819, and recorded Feb. 23, 1821, conveying all his right to lands in Lovell which descended to him from Benjamin Ballard, the original owner. James and Ruth White, and Thomas and Rebecca Harrington, and Elias and Abigail Carter, to said Farrar, dated Aug. 11, 1819, and recorded Oct. 4, 1819, conveying all their right to the share of Benjamin Ballard, the orginal proprieter, in said Lovell lands. It was proved that the several female grantees were heirs at law of said Ballard, and the male grantors, their husbands ; and that Ballard had been dead about forty years. The plaintiffs’ counsel then read a deed from said Farrar to Samuel Dwelley, (who are the two plaintiffs,) dated Jan. 10, 1820, and recorded Jan. 23, 1821, conveying one moiety in common of said lot 43.
    It was proved, that Oct. 4, 1819, Farrar entered upon said lot and took formal possession of it, and placed the initials of his own name and Dwelley's on certain monuments, said lot being at the time wild and uncultivated, except four acres in the possession of Levi Stearns.
    
    The counsel for the defendants then read a deed from John Knox, as collector, to William Knox, of lot 43, dated April 5, 1780 ; and also a copy of a vote of said proprietors passed at a meeting held March 23, 1780, which was thus : “ Voted, that “ the collector be empowered to give deeds of the lands sold “ for taxes.” [On a former trial of this cause, as reported in 5 Greenl. 345, the foregoing vote was supposed to have been passed at a meeting held Nov. 10, 1779, but upon examination of the records it appeared that the meeting was held as above stated, March 23, 1780.] He then introduced and read the following deeds, viz.: William Knox to Samuel Nevers, of one half of a full Right originally granted to the heirs of Benjamin Ballard, dated Dec. 31, 1796, and recorded Nov. 3, 1798. Samuel Nevers to Levi Stearns, of one half of lot No. 43, dated Feb. 20, 1819, and recorded Oct. 9, 1819. Joseph and Mary Brown to Josiah Stearns, of three fourths of a right in Nos. 43 and 28, dated May 24, 1781, and recorded March 14, 1812, Josiah Stearns to Samuel Stearns, of all his right, being one fourth of Rights 28 and 43, dated Dec. 1, 1789, and re» corded Sept. 19, 1811. Samuel Stearns to Benjamin Webber, of one half of Right 43, dated Dec. 29, 1795, and recorded Nov. 1, 1798. Benjamin Webber to Levi Stearns, of the same one half of Right 43, dated Feb. 20, 1819, and recorded Oct. 9, 1819.
    It appeared that in the first division in 1780, lot 43 was drawn to Right 43. In the second and third divisions in 1783, lots 50 and 59 were drawn to Right 43. In the fourth division in 1792, lot 61 was drawn to Right 43. In the fifth division in 1817, lot 43 (the locus in quo) was drawn to Right 43.
    
    It was proved that Levi Stearns, from 1813, had possessed about four acres of the lot ih dispute, inclosed within fences ; but none of the trees cut by the defendants were standing on these four acres. That Benjamin Webber had possessed lot 59, inclosed within fences, constantly since 1797. That Nevers mowed a meadow and cut the timber on lot 43 in first division. That one Welch occupied 5 or 6 acres of lot 61, about the year 1814. That Nevers, since 1804, had cut and improved on lot 50, and about 1813, had inclosed the meadow thereon within fences.
    It was also proved that Levi Stearns never claimed any common land — that he lived on a lot adjoining, and got over on to the common land, which has since become lot No. 43 in the 5th division — and that he had cleared up the four acres by permission of the proprietors.
    
    It also appeared from the Proprietor’s records, that the sale of Ballard’s Right was made Nov. 26, 1779. But the competency of the record to prove this fact was objected to by the counsel for the defendants.
    If any of the objections made to the defendants’ title should be considered fatal by the Court, the counsel for the defendants objected to the plaintiffs’ title :
    1. That at the time when Farrar took his deeds from the Ballard heirs, there was an adverse seizin.
    
    2. That these deeds were void, because the taking of them was an act of maintenance.
    
    3. That being deeds of naked release, they passed no title or seizin to Farrar.
    
    
      4. That whatever may have been Farrar’s title, there was an adverse seizin when Dwelley took his deed, and therefore no title passed to him.
    If in the opinion of the Court the objections taken to Knox’s deed ought not to prevail; or if in their opinion, either of the objections taken by the counsel for the defendants, was sustained by the evidence; the verdict, which was for the plaintiffs, was to be set aside and they were to become nonsuit; otherwise judgment was to be rendered thereon.
    Longfellow, for the defendants,
    argued in support of the positions taken at the trial in regard to the plaintiffs’ title; and in maintenance of the deed of John Knox, the collector, as establishing in his view, the title of the defendants, and cited the cases of Green 8f al. v. Blalce, ante; and Colman v. Anderson, 10 Mass. 105.
    
      Fessenden &f Dehlois, for the plaintiffs.
   The opinion of the Court was delivered by

Weston

When this cause was before us, prior to the last trial, the authority of John Knox to sell and convey the land of delinquent proprietors, was under consideration ; and it was sustained, for the reasons set forth in the opinion of the Court. 5 Greenl. 345. But upon examining the proprietors’ records, it now appears, that the vote, under which he proceeded, in fact passed only thirteen days before the date of his deed to William Knox; although from an error in the copies, used at the former trial, it was supposed to have passed at an earlier period. It is apparent then, that between these dates, there could not have been time to give forty days’ notice of the sale, in the manner prescribed by the provincial act of 26 George 2, Anc. Charters, 588. With every desire to uphold a transaction so ancient, which on a former occasion was carried as far, as legal principles would warrant, we feel constrained to decide, that the sale and deed of John Knox was not made in conformity with law.

But notwithstanding the failure of the defendant to sustain himself under that deed, several objections are taken by his counsel to the title of the plaintiffs, predicated upon an adverse seizin. The force and effect of these objections depend upon the question, whether an adverse seizin existed, either when Farrar took his deeds from Ballard’s heirs, or when he conveyed to the other plaintiff, Dwclley.

It may admit of question, whether a tenant in common can be disseised by a stranger, claiming his interest only. Reading v. Royster, 2 Salk. 423; Ld. Baymond, 829. In all cases, where there is a concurrent possession, the seizin is in him, who has the title. The possession of the other tenants in common, held for the benefit of all, would seem to defeat any attempt to create an adverse seizin, as against one. But certainly nothing short of an actual occupancy of part of the land held in common, with the claim of the right of the true owner, indicated by a deed from a party pretending title, or other equivalent notice to co-tenants and others, could have this effect.

The doctrine of disseizin, its effect and limitations, is laid down with great precision, in the leading case of the Proprietors of Kennebec Purchase v. Laboree, 2 Greenl. 275. It is there stated, that if a man enters upon a tract of land, under a deed duly registered, although from one having no legal- title, and has a visible occupation of part of it only, the true owner is disseised of the whole tract. This tract must be continuous. The doctrine cannot be extended to detached parcels, of a part of one of which, the party may have actual possession. By no fair construction or intendment, could he be said to be in possession of the other parcels. It is the occupation and improvement, and not the deed alone, which creates the adverse seizin. The party entering by apparent title, and actually occupying part of the land, is deemed to be in possession of the whole tract, to which his deed extends.

The possession and occupation of all those, through or under whom Levi Stearns held, was of other parcels in severalty. With regard to his occupation of the four acres, part of the lot in question, it was proved to have been under no claim of right, but by permission of the proprietors. Of this lot then, when Farrar took his deeds of the heirs of Ballard, there was no adverse seizin.

On the fourth of October, 1819, no one being at that time in possession, claiming adversely, Farrar entered into and took possession of the lot in question, which had been previously conveyed to him by the true owners. Five days afterwards, Stearns caused his deeds of' the same lot, from persons having no legal title thereto, to be registered. There followed no •change of occupancy. He held the four acres before, as tenant at will to the proprietors and their assigns. A tenant or lessee may become a disseisor, at the election of the lessor. But the lessee will not be permitted to disclaim his tenure, and at his own election set up an independent title of his own, commencing by disseizin. He cannot make use of the possession, which he received at the hands of the lessor, as evidence of an adverse title. It does not appear that there was any change of circumstances, up to the tenth of January, 1820, when Farrar conveyed one moiety in common of the premises in dispute to Dwelley, th'e other plaintiff. Upon this view of the facts, there was no legal objection to the effective operation of the deeds, under which the plaintiffs claim. The possession being by construction of law in the true owner, the terms of the deeds, although they contained no covenants, and although the consideration may have been merely nominal, were sufficient to transfer and convey the land.

Judgment on the verdict.  