
    Thomas Andrews, and Hannah, his Wife, versus Thomas Hooper.
    A tenant in a real action cannot give in evidence a title obtained since the commencement of the suit.
    This was a writ of entry, brought for an undivided third part of a piece of land and a wharf in Charlestown, in which the demandants counted upon their own seizin within thirty years, and a disseizin by the tenants.
    . On the trial, which was had upon the general issue, at the sittings nere after the last October term, before Jackson, J., it appeared, that William Barber, the father of the demandant, Hannah, was seized in fee of the whole of the described premises in the year 1770, and continued to hold and occupy the same until 1773 or 1774, when he sailed on a voyage to England. He is supposed to have died on that voyage, as neither the vessel noi any of the crew have been heard of since their departure. His wife and family * continued to receive the rents and profits from the time of his departure until the commencement of the Revolutionary War, in 1775, when the wood-work of the wharf was burned by the British, whilst they occupied the '■own.
    
      The said William Barber left five children, all of whom are dead without issue, except the said Hannah Andrews, and William, who was the eldest son, and who removed many years ago to one of the Southern States, where he is supposed to have died. It is not known whether he left any children.
    The children of the said William Barber the elder let the wharf in the years 1778 and 1779, and received the rent ; but they never repaired it after the fire before mentioned ; and it remained in a ruinous and decayed state, and wholly unoccupied, from 1779 until the tenant, Hooper, entered upon and repaired it in 1788, as hereafter mentioned.
    The tenant, to maintain the issue on his part, offered in evidence a copy, from the registry of deeds, of a mortgage deed, dated October 13, 1770, from the said William Barber to one William Dennie, purporting to convey the whole of the premises, to secure the payment of £ 146 in nine months, according to the tenor of Barber’s note to Dennie of the same date. This evidence was objected to by the demandants, because the said note and the original deed were not produced ; but, the tenant stating that he expected to prove an entry under said mortgage, and an occupation of the premises for many years, the judge admitted the copy, reserving the question of its competency for the whole Court.
    The tenant then proved, that the said William Dennie died in 1783, leaving a will, which was duly proved and allowed. The premises in question are not mentioned in that will, but Mrs. H. C. Swan is made residuary legatee and devisee. On the 29th of December, 1787, a deed was made for the conveyance of the premises., by the said H. C. Swan and James Svjan, her husband, to David Wood. This deed was executed by Mrs. Swan herself, and by two persons as attorneys for the said James Swan; but no
    * evidence was offered of any power or authority given by James Swan to the said attorneys.
    The tenant also produced another deed, dated the second day of April, 1812, after the commencement of this action, executed by the said James Swan and his wife, acknowledged by the wife and duly registered ; by which they confirmed the said conveyance made in 1787 to the said David Wood, and released all their right in the premises to the said Hooper, who then held the same under the said Wood.
    
    Both these deeds were objected to by the demandants, but admitted in evidence, reserving for the consideration of the whole Court the question whether they were admissible.
    The tenant then produced a deed, dated August 14th, 1788, executed by the said David Wood, and purporting to convey the whole of the said premises to the said Hooper. It appeared, that the said 
      Wood, after receiving his first-mentioned deed from the said James Swan and his wife, was repeatedly on the premises, and talked of repairing the wharf; but nothing was done with it until after the conveyance to Hooper, who immediately repaired the wharf, and continued to occupy it until the commencement of this action.
    It did not appear that the said Dennie, or any person claiming under him, made an actual entry on the premises, or exercised any act of ownership therein, until the said conveyance from Swan and his wife to Wood.
    
    Upon this evidence, the judge directed a verdict for the demand-ants ; because the tenant had not shown such an entry or possession, under and by virtue of the mortgáge, as would dispense with the production of the said original mortgage deed and note. A verdict was accordingly rendered for the demandants ; and, if the Court should be of opinion that the said direction was right, or that the said two deeds from the said Swan and his wife ought not to have been admitted in evidence, the verdict was to stand, *and judgment to be rendered accordingly ; otherwise, the verdict was to be set aside, and a new trial granted.
    
      Ward, for the tenant,
    argued, front the circumstances in the case, that there was no ground of presumption that the debt to Dennie had ever been discharged. The well known custom of the country, that the original grantees retain the deeds made to them, and do not deliver them over to those who purchase from them, sufficiently accounts for the tenant’s not being possessed of the deed to Dennie, or from him to Wood.
    
    The mortgagor and his heirs’ having been out of possession since 1779, and the tenant’s quiet occupation for more than twenty years, afford abundant presumption of an entry and foreclosure on the part of the mortgagee.
    If the deed executed by Mrs. Swan and the attorneys of her husband was insufficient to make an indefeasible title to the grantee, the subsequent deed from Swan and his wife had relation to the prior conveyance, and confirmed it. Being in its nature nothing more than a release, it was properly received in evidence, as it went directly to show that the demandants had no right; although, if its application had been to this action only, it might well have been rejected. 
    
    
      Bigelow, for the demandants.
    
      
      
        Shep. Touch 56. — 6 Mass. Rep. 30. — 3 Burr. 1353. — 3 Mass Rep. 560. —Doug. 112. — 10 Mass Rep. 131. —9 Mass. Rep. 220
    
   Wilde, J.,

delivered the opinion of the Court. This case turns on the competency of the evidence offered by the tenant. By the terms of the judge’s report, judgment is to be rendered for the demandants, if the copy of the mortgage deed, or the two deeds from James Swan and wife, are not competent to establish the title set up m the defence ; and we are all clearly of opinion, that they are not.

As to the copy of the mortgage deed, the general rule is, that a copy shall not be permitted to be given in evidence, without first proving the loss or destruction of the original. Here no proof was produced of any such loss ; nor are there any facts in the case, from which it can be * inferred. The mortgagee never entered, nor any one deriving title from him, before tne commencement of the present action. For, as will be seen presently, the deed to Wood was inoperative ; and, therefore, his entry, and the tenant’s after him, were unlawful. No attempt has been made to foreclose. The note referred to in the mortgage deed has not been produced ; nor has any evidence been given' respecting it. There was no evidence of any demand or payment of interest; which might have been expected, had there been a subsisting debt during the lives of the parties. For aught that appears, the note might have been punctually paid. The copy of a mortgage deed, accompanied by such circumstances, can have no weight in the scale of evidence, and ought not to be admitted.

But there is another insuperable objection to the tenant’s title. The deed to Wood is clearly not valid, there being no evidence tha those persons who executed the deed in behalf of Swan had any authority from him so to do ; and the deed of a feme covert, in which the husband does not join, is void.

Nor can the tenant be permitted to set up a title under the deed of 1812, made since the commencement of the present action. The evidence of a title thus acquired has been, I believe, uniformly rejected in our courts. A different course would operate unequally and unjustly, by enabling the tenant to fortify a defective title, and avoid the payment of costs, for which he might otherwise be liable ; and which, in the course of an expensive suit, might even exceed the value of the land in litigation.

The dictum of Lord Mansfield, in the case of Sullivan vs. Montague, cited by the counsel for the tenant, that “ actio non goes, in, every case, to the time of pleading, not to the commencement of the action,” is certainly not correct. The case of Reynolds vs. Beerling goes the full length, perhaps, of this doctrine. But this case was afterwards overruled in the case of Evans vs. Prossen, wherein it was determined, that a plea of set-off, that, the * plaintiff was indebted to the defendant at the time of the plea pleaded, is bad. And. in the case of Le Bret vs. Papillon, Lord Ellenborough said, that the rule laid down in Sullivan vs. Montague had never been cited as law, at least since the case of Evans vs. Prossen; and he adds, Since that time, it may be considered as a settled rule of pleading, that no matter of defence, arising after action brought, can properly be pleaded in bar of the action generally.”

Upon the whole of the case, therefore, we think that the demand-ants have good right to retain their verdict ; and judgment must be entered accordingly. 
      
      8) Doug. 112.
     
      
      
        Dong, ubi supra, in nolis.
      
     
      
       3 D.& E. 186.
     
      
       4 East, 502.
     