
    Amos Oakes versus Jedediah Marcy.
    The declarations of one having title to land, that it was occupied by his mother, and that he lived on it and cultivated it for her as her property, are irrelevant to prove a disseisin by her, for they show that she occupied with his consent.
    If a disseisee, whose right of entry is not lost, enters and delivers a deed upon the land, the disseisin is so far purged by the entry as to give operation to the deed.
    Where the grantee in a deed with warranty from a person having no title, enters upon the land, and afterwards the grantor takes a release from the owner, the release will operate as a confirmation of the first grantee’s title, although neither the releasor nor releasee was in possession at the time of the release.
    Writ of entry to recover seisin of two acres of land in Charlton. The demandant declared upon his own seisin within thirty years and a disseisin by the tenant. The tenant pleaded non disseisivit.
    
    At the trial, before the late chief justice Parker, it appeared that the land demanded is part of a farm formerly belonging to Jacob Davis. The demandant produced a deed made to him by Eunice Oakes on April 14th, 1817, and proved that at the time of the execution and delivery of this deed he was, and for several years before had been, in possession of the demanded premises under Eunice Oakes; and he there rested his case.
    The tenant gave in evidence a deed from Jacob Davis to Caleb Ammidon, dated June 12th, 1789, of the farm, excepting out of the grant the demanded premises. Also a deed from Ammidon to Abijah Oakes, dated October 12th, 1792, of the whole farm, including in the description the demanded premises, with covenants of seisin and warranty. Under this deed Abijah Oakes entered upon and occupied the farm generally, and the demanded premises, in the manner hereafter 'tated. The tenant also produced a deed of release from Jacol Davis to Ammidon, of the part excepted out of his former deed. This deed is dated September 25th, 1796, at which time neither Davis nor Ammidon was in possession. The demand-ant objected to the admission of this deed, but the objection was overruled.
    The tenant then produced a deed of the demanded premises from three of. the heirs of Abijah Oakes, there being four, dated August 14th, 1827, at which time the demandant was in possession, claiming to hold the same under bis deed from EuOakes. The deed thus produced was delivered upon the premises, an entry having been made for the purpose of conveying. The admission of this deed was objected to, on the ground that there being an adverse possession of the demand-ant under claim of right, nothing passed by the deed. This objection also was overruled. The tenant knew, at the time of the bargain for the land with the heirs, and of the execution of this deed, that the demandant was in possession claiming title.
    The tenant then proved by Isaac Oakes, one of his grantors, son of Abijah Oakes, that the father occupied the land demanded, and cultivated the same, in 1792, and from that time until 1807, when be removed to Stockbridge ; and that he cultivated it and took the crop in 1808 ; that in 1809, the wit ness, at the request of his father, let the land to one Brown for $ 8, which were paid to the witness, and by him to his father ; that in 1810 the witness made a new bargain with Brown, who was to pay $ 6 for the use of the land, but whether that sum was paid or not, the witness did not know. In 1811 the demandant occupied the land, and he continued to occupy it, until the disseisin alleged to have been committed by the tenant. Abijah Oakes died in 1814.
    To rebut this evidence the demandant offered to prove, that Eunice Oakes, mother of Abijah, who lived in the house with her son, but supplied her own food at his table, had been in the sole occupation of the land demanded, for more than forty years before the action was commenced, cultivating it as a garden, having fruit-trees there, &c. But it was stated that this evidence principally resulted from declarations of Abijah Oakes, not made while on the land and cultivating the same, but at various times and places away from the land, tending to show that he worked on and cultivated the same for his mother as her property.
    The judge ruled that evidence of this nature was inadmissible. Whereupon the demandant became nonsuit, with liberty to move to have the nonsuit taken off; and if the foregoing rulings were wrong, a new trial was to be granted ; otherwise the nonsuit was to stand.
    The cause was argued in writing, by J. Davis and Allen, for the demandant, and by Newton, Bottom and Merrick, for the tenant.
    The counsel for the demandant cited, to show that the release was inoperative, Warren v. Child, 11 Mass. R. 222; Wolcott v. Knight, 6 Mass. R. 418 ; Everenden v. Beaumont, 7 Mass. R. 76 ; and to show that the declarations of Abijah Oakes were admissible evidence, Ivat v. Finch, 1 Taunt. 141 ; Human v Pettett, 5 Barn. & Ald. 223 ; Peaceable v. Watson, 4 Taunt. 16 ; Halloway v. Rakes, cited, in Davies v. Pierce, 2 T. R. 55 ; Walker v. Broadstock, 1 Esp. R. 458 ; Aveson v. Kinnaird, 6 East, 188 ; 1 Stark. Ev. 321 ; 2 Stark. Ev. 42 ; Ward v. Oxford, 8 Pick. 476.
    For the tenant were cited, to the point, that the entry and deed of the heirs of Abijah Oakes were sufficient to convey a title, Stearns on Real Actions, 42, 43, 75 ; St. 1786, c. 13 ; Worcester v. Eaton, 13 Mass. R. 371 ; Willard v. Nason, 5 Mass. R. 240 ; Knox v. Jenks, 7 Mass. R. 488 ; to the point, that the release would avail the tenant, Somes v. Skinner, 3 Pick. 52 ; Bowers v. Porter, 4 Pick. 198 ; and to the point, that the declarations were inadmissible in evidence, Bartlett v. Delprat, 4 Mass. R. 702; Clarke v. Waite, 12 Mass. R. 439 ; Paine v. McIntier, 1 Mass. R. 69 ; Bridge v. Eggleston, 14 Mass. R. 245.
   Wilde J.

drew up the opinion of the Court. The demandant’s title is derived from Eunice Oakes, and her title, if she ever had any, was merely possessory, and founded on a disseisin. The evidence offered to establish such a title in Eunice Oakes was properly rejected, for if all other objections to it should fail, it is a sufficient objection that the evidence offered was immaterial and irrelevant. The object and the tendency of the evidence was to establish the fact, that Abijah Oakes occupied the premises under his mother and as her property. But suppose he did, how does such an occupancy establish a title by disseisin in Eunice Oakes ? If Abijah Oakes consented to the occupancy by his mother, there was no adverse possession by her, and consequently no disseisin. The evidence offered not only proved bis consent, but showed that he was the actual occupant; so that if there was a disseisin, he must have disseised himself, by his own occupancy, for the use of his mother, which would be technically absurd. The declarations, therefore, of Abijah Oakes are immaterial ; they could not divest him of his title and give it to his mother ; and the occupancy also is immaterial, as there was no disseisin.

It follows then, that the demandant has failed to show, or to offer to show, any title excepting that commencing in his own possession in 1811.

The title under which the tenant claims commenced at least as early as 1792, when Abijah Oakes entered under the deed from Ammidon ; for if the title to the demanded premises did not pass by that deed, still as Abijah Oakes entered under it, claiming title, his entry and occupancy would amount to a disseisin.

It is objected that the tenant has not connected himself with this title, because the heirs of Oakes were disseised by the demandant at the time of their conveyance to the tenant, and that so the conveyance was not valid. But it appears that the heirs entered and delivered the deed on the land ; they had not lost their right of entry ; and according to the decision in the case of Knox v. Jenks, 7 Mass. R. 488, the dissessin was so far purged by the entry as to give operation to the deed as a feoffment

The tenant has thus shown an older and better title than the demandant’s, ant) might rest his defence on this possessory title ; but he has gone further back, and has shown, as we think, a valid title derived from Jacob Davis, the admitted owner of the premises before his release to Ammidon. The objection that this release cannot operate, because neither party was in possession, is more plausible than substantial. The operation of this release, if it had any legal operation, was to confirm the title of Abijah Oakes, and not to vest a title in Ammidon ; according to the principles laid down in the case of Somes v. Skinner, 3 Pick. 52. In form it was a release to Ammidon, but its legal operation was to the use of Oakes, and as Le was in possession at the time of the release, it may well operate to confirm his title, as the reason of the objection fails. The deed of release is to be regarded according to its legal operation, which is the same as it would have been if Oakes had been the releasee named in the deed. We do not think it necessary for the tenant to insist on this confirmation of his title in the present action, but we cannot doubt it is well supported upon the principles suggested.

Motion to take off the nonsuit overruled. 
      
       See Comstock v Smith, 13 Pick. 116; Doe v. Oliver, 10 Barn. & Cressw 181; Allen v. Sayward, 5 Greenleaf. 231 ; 3 Pick. (2d ed.) 59, note 1, and cases cited ; Kimball v. Blaisdel, 5 N. Hamp. R. 534; Russell v. Coffin, 8 Pick. (2d ed.) 153, note 1 ; Reformed Dutch Church v. Veeden, 4 Wendell, 496 ; Revised Stat. c. 59, § 5; 3 Pick. (2d ed.) 58, note 1; Baker v. Whiting, 3 Sumner, 475.
     