claimant only the remedy of an action against the heir. Thirdly, this was admirably adapted to the military spirit of the feudal tenures, and tended to make the feudatory bold in war; since his children could not, by any mere entry of another, be dispossessed of the lands whereof he died seised. And, lastly, it is agreeable to the dictates of reason, and general principles of law."(z)

This doctrine of descent cast does not apply, if the claimant be under any legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm; because, in all these cases there is no neglect or laches in the claimant, and, therefore, no descent shall bar or take away his entry.(a) Nor does it affect copyhold, or customary estates, where the freehold is in the lord ; (b) nor cases where the party has not any remedy but by entry, as a devisee.(c)

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*The right of entry may be tolled, or taken away, by a descent cast, in cases of abatement, intrusion, and disseisin.[1]

(2) 3 Bik. Com. 176. (a) Litt. 1. 3. c. 6.

(b) Doe, d. Cook v. Danvers, 7 East, 299. (c) Co. Litt 240, (b).

[1] "Disseisin is an estate gained by wrong and injury; and therein it "differs from dispossession which may be by right or wrong. This is the uni"form language of the best authorities from the time of Littleton. (Litt. s. Co. Litt. 3 b. 18 b. 153 b. 181 a. Cro. Jac. 685. 1 Salk. 246 n. 12. 1 Burr. 109.") Per KENT, Ch. J. delivering the Opinion of the Court in Smith ex dem. Teller & Al. vs. Burtis & Al. 6 Johns Rep. 217. Doe ex dem. Arden & Al. vs. Thompson, 5 Cow. Rep, 374.

"279.

If A. be tenant of the freehold, and B. tortiously enter upon, and turn the sub-tenant of A. out of possession, claiming the land as his absolute Property; and he, or those claiming under him, continue to hold the same, by actual adverse Possession, until the death of A., this is an actual Disseisin of A.-Davis & Ur. vs. Martin, 3 Munf. Rep. 285.

Where one bad driven piles in the ground which was covered by a Millpond belonging to another, and had erected and maintained buildings on the said piles for sixty years, the water flowing between the piles, it was held to constitute a Disseizin of the Owner of the Mill-pond, and he was barred of his right to the land so occupied.-Boston Mill Corporation vs. Bulfinch, 6 Mass. Rep. 229.

If a man enters upon land under a Deed duly registered, though from one having no legal title to the land, and has a visible possession, occupancy, and improvement of only a part of it, such occupation and improvement, unless controlled by other facts, is a disseisin of the true owner, as to the whole tract; because the extent and nature of his claim may be known, by inspection of the public Registry; for the 6th Section of the Act of Limitation, of Maine, Ch. 2. was enacted to abolish the distinction existing

*By the common law, if an abator, or intruder, or disseisor, [*43] died in peaceable possession, the descent to the heir gave to

between a possession under a Deed recorded, or a possession without such title.-Proprietors of Kennebec Purchase vs. Laboree & Al. 2 Greenl. Rep. 275, & Vide (S. P.) Little vs. Megquier. Ibid. 176.

In the case of Small vs. Procter, (15 Mass. Rep. 498) WILDE, J. delivcrsng the Opinion of the Court, said" Whatever may have been the an"cient doctrine of disseizin, in relation to feudal tenures, it has ever been "held in this State, that an entry on vacant or uncultivated land, by one "claiming to hold it, having no right, and without permission of the Owner, "accompanied with occupation or open visible possession, is sufficient to "constitute a disseizin. This principle has been too frequently recognized "to be now controverted. (4 Mass. Rep. 416. 6 Mass. Rep. 229. 14 Mass. "Rep. 200.)

"Disseizin does not necessarily imply a forcible entry, or an actual ouster "by violence or fraud: for in cases of vacant possessions, a simple tortious "entry and open exclusive possession under claim of adverse title, are "equivalent to such entry and ouster."-& Vide Hall & Al. vs. Powel, 4 Serg. & R. Rep. 465.

"A mere entry upon another is no disscisn, unless it be accompanied "with expulsion, or ouster from the freehold."-Smith ex dem. Teller & Al. vs. Burtis & Al. 6 Johns. Rep. 217 (Per KENT Ch. J. delivering the Opinion of the Court. (Doe ex dem. Arden & Al. vs. Thompson, 5 Cow. Rep. 374. (Per WOODWORTH, J. delivering the Opinion of the Court.) Jackson ex dem. Van Alen vs. Rogers 1 Johns. Cas. 36. & Vide Jackson ex dem. Hardenbergh & Al. vs. Schoonmaker, 4 Johns. Rep. 390.-Simpson & Al. vs. Shannon's Heirs, 3 Marsh. Rep. (Ky.) 463. Norcross, Executrix vs. Widgery, 2 Mass. Rep. 508.-Jackson ex dem. June vs. Raymond, 1 Johns. Cas. 86. (note.)

"A peaceable entry upon Land, apparently vacant, furnishes per se, no "presumption of wrong." 6 Johns. Rep. 218.-5 Cow. Rep. 374.

The Disseisor is "bound to shew his tortious seisin affirmatively." 5 Cow. Rep. 374.-6 Johns. Rep. 118.

Where the entry is congeable, it cannot work a Disseisin. Ricard vs. Williams & Al. 7 Wheat. Rep. 107. 6 Johns. Rep. 218. Higginbotham & Al. vs. Fishback. 1 Marsh. Rep. (Ky.) 506. 6 Johns. Rep. 218.-5 Cow. Rep. 374. Jackson ex dem. Van Alen vs. Rogers, 1 Johns. Cas. 37. 47.— Jackson er dem, June vs. Raymond, Ibid. 86. (in note.) & Vide Brown vs. Porter, 10 Mass. Rep. 100.

Tenant for life levied a fine, and afterwards devised the premises, and died seised; the Devisee (the Defendant in Ejectment,) entered and continued in possession; and his counsel contended that this case fell within the definitions of a Disseisin which had been referred to from Littleton and Lord Coke. But Lord ELLENBOROUGH, Ch. J. answered him thus. "All "the Definitions include an Ouster of the tenant, a wrongful putting of "him out: and there lies your difficulty: there is an entry of the one par"ty, but what ouster or putting out of the other is there?"-Williams, Les "see of Hughes & Ux. vs. Thomas, 12 East's Rep. 141, 152.

If the original entry of a Party were lawful or congeable, no subsequent

a

him a right of possession, and took away from the true owner his right

act of his whilst continuing in the possesion acquired by such entry, can amount to a technical actual Disseisin of the true owner.

In the case of Doe ex dem Davis vs Davis, (1 Car. & P's. Rep. 130.) the Plaintiff was the eldest, and the Defendant the second son of a Mr. Davis, who was seized in fee of the house for which the present ejectment was brought. It appeared that the Defendant had lived with his father for some time previous to his death, at the house in question, and continued to reside in the house after the father's death, when he levied a fine with proclamations, which was proved; and the Defendant's counsel contended, that he must succeed, as there had been no actual entry by the lessor of the Plaintiff, but PARK, J., considered such entry unnecessary, as the second son merely continued in the house he had rightfully resided in during his father's lifetime; and that he was not seized of the freehold rightfully, or by disseisin. His lordship therefore directed a verdict for the Plaintiff.

A rule nisi for a new trial having been obtained, and the case argued in the Court of Exchequer

GRAHAM, B., now delivered the Opinion of the Court. "In this case a "second son is left in possession at the death of his father, and levies a "fine. The question is, whether he has a freehold by disseisin.

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A person, to levy a fine, must either have a freehold by right or by wrong. "And if by wrong, the cases show, that the possession must be adverse. "There must be a wrong in the original entry. Now here the Defendant was permitted to enter by his father which is clearly not a tortious entry; "and in Doe vs. Perkins, Lord ELLENBOROUGH and the rest of the Court "Held, that if a man held over on a lease, and a descent was cast, the entry was not tolled; because the possession of the Defendant's ancestor did not originate tortiously. We are therefore of opinion, that the present Defendant's possession was not a disseizin of the freehold." Rule discharged. In the case of The Proprietors of the Kennebec Purchase vs. Springer (4 Mass. Rep. 418. 419.) PARSONS, Ch. J. delivering the Opinion of the Court, said: "When a man not claiming any right or title to the Land "shall enter on it, he acquires no seizin, but by the ouster of him who was "seized, and he is himself a disseizor. To constitute an ouster of him who "was seized, the disseizor must have the actual exclusive occupation of the "Land, claiming to hold it against him who was seized, or he must actually "turn him out of possession. When a disseizor claims to be seized by his "entry and occupation, his scizin cannot extend farther than his actual ex"clusive occupation; for no farther can the party seized be considered as "ousted; for the acts of a wrongdoer must be construed strictly, when he "claims a benefit from his own wrong."

On considering the evidence we are satisfied that the Demandants were "not disseized until 1792, by the entry of the Tenant that the running "round the Land by a Surveyor, and marking the lines, by the direction "of one who claims no title to the Land, is not such an exclusive occupa"tion of the Land as can amount to an ouster or disseizin of the Demand"ants. Neither can the occasional cutting of the grass on the meadow by Springer, who does not appear to have claimed the Land, amount to "disseizin."

"To constitute a disseizin of the Owner of uncultivated Lands, by the

of entry, although such death happened immediately after the wrongful

"entry and occupation of a Party not claiming title to the Land, the occu"pation must be of that nature and notoriety, that the Owner may be pre"sumed to know that there is a possession of the Land adverse to his title: "otherwise a man may be disseized without his knowledge, and the Stat"ute of Limitations may run against him, while he has no ground to be"lieve that his seizin has been interrupted."-& Vide Watrous vs. Southworth, 5 Conn. Rep. 305, 311.

In the case of Pray vs. Pierce, (7 Mass. Rep. 381, 383.) The tenant read in evidence a Deed from one James Witherill, a Collector of Taxes, to one Charles Clark, dated October 18th, 1791, duly executed and recorded December 15th, 1792, wherein for the consideration of, &c. the said Collector granted, &c. the demanded premises in fee, saving to the owner the right of redeeming the same.

There was no evidence that the said Collector had conformed to the requirements of the law, in relation to the sale of the land; Clark, under colour of the said conveyance, fenced the land and depastured his cows upon it; he demised it by parol to the tenant, Pierce, who occupied it, under the said demise from the year 1798, to the time of trial, at October Term,

1810.

The Demandant showed a regular chain of title to the demanded premises, by sundry conveyances (commencing in the year 1779) down to Ivory Hovey; and also a Quit-claim Deed, dated February 1st, 1793, duly executed, and recorded June 24th 1794, wherein the said Hovey in consideration, &c. conveyed the demanded premises, together with other parcels of Land to the Demandant, Pray.

On the trial a verdict was rendereded for the Demandant, and upon a motion for a new trial upon Exceptions taken by the tenant, the COURT said "Another exception is, that at the time when Hovey conveyed to 'Pray, the Demandant, Hovey was disseised by Clark, under whom the "tenant claims.

"

"This objection must depend upon the facts which are in the Case. "From Hardison's testimony it is in evidence, that he had the care of the "Land for Hovey, until he understood that Hovey had made a conveyance "of it to the Demandant. To control this testimony, the tenant has pro"duced to us testimony that Clark, previous to the conveyance from Hovey "to the Demandant, had under color of the Collector's conveyance to him, "fenced the Land, and depastured his cows upon it. But there was no evi"dence that Hovey had any notice of these acts of Clark. Unquestionably had Clark had a good title, and had he under that title done those acts, it would have been good evidence of a legal seisin in him. But as nothing passed by the Collector's deed to him, those acts of his must be "deemed to be trespasses. But they cannot amount to an ouster of Hovey, until evidence that Hovey had notice of them. Otherwise a private act of trespass on the soil of another might be evidence of an ouster, "without any knowledge on the part of the owner of the Land. This no"tice may be proved either by direct evidence of the fact; or the Jury may presume it from circumstances in evidence; as when it is proved that "the owner's Cattle have been turned off the Land, or his servant's re"fused an entry, &c.; or a continuance of the trespass for a long time is "shewn, when the Owner or his Agent lives in the neighbourhood. But

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acquisition of the lands; but by the statute of 32 Hen. VIII. c. 33. it is

"whatever may be the evidence of this notice, it is a fact to be found by "the Jury, and the Court cannot presume it. And as, in the case before us, "this notice is not stated as a fact proved, Hovey must be considered as "seised at the time of his conveyance to the Demandant and so this ob"jection fails."

In the case of William, Lessee of Hughes & Ux. vs. Thomas, (12 Eeast" Rep. 154, (Lord ELLENBOROUGH, Ch. J. said "Now here tenant for life "levied a fine, and continued in possession till her death; having devised "to the defendant, who after her death, entered and continues in posses"sion; and this is contended to be of necessity a disseisin but what act "has he done to make him a disseisor? The lessor of the plaintiff never " was in possession, and therefore could not be disseised or put out of possessoin. It does not even appear that the defendant was cognizant of "the claim of the lessor. Disseisin was formerly a notorious act, when the "disseisor put himself in the place of the disseisee as tenant of the free"hold, and performed the acts of the freeholder, and appeared in that "character in the Lord's Court. But what act of notoriety is here stated "to have been done by the defendant, as claiming to put himself in the "place of the rightful freeholder? It would be carrying the doctrine of "disseisin further than any other case has done, to say, that the mere taking of the rents and profits, as devisee of the land, is a disseisin, with"out meaning to do this adversely to the party entitled; for it does not even appear that when he entered he knew of the lessor's claim."

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To constitute a disseisin, the possession of the Disseisor must have been adverse to the Title of the true Owner, as well as open, notorious, and exclusive.-Little vs. Libby, 2 Greenl. Rep. 242.

"After a Mortgage, if the Mortgagor remains in possession, it is not a "disseisin of the Mortgagee."-Gould vs. Newman, 6 Mass. Rep. 241 (Per PARSONS, Ch. J. delivering the Opinion of the Court.)

Where one enters upon land under a Deed duly acknowledged and recorded, he acquires a freehold either by right or wrong: if by wrong, it is an actual disseisin of all claiming the land under a different title.-Higbee & Al. vs. Rice, 5 Mass. Rep. 344.

An entry on land under a Deed recorded, and payment of taxes, is no evidence of a Disseisin of the true owner, unles the person who entered has continued openly to occupy and improve it.-Little vs. Megquier, 2 Greenl. Rep. 176.

"And it is also to be observed, that the acts of disseisors are, in respect "to the lawful owner or true proprietor, to be limited to an actual ouster "and exclusive occupation of such disseisors, and shall not be extended by construction according to their claims under invalid deeds or other conveyancing."-Brimmer vs. the Proprietors of Long Wharf-5 Picker. Rep. 135. (Per PUTNAM, J. delivering the Opinion of the Court.)

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One join-tenant cannot convey a part of the land holden in join-tenancy by metes and bounds to a stranger, nor can one entering under such a conveyance be a Disseisor of the other join-tenants; for one join-tenant cannot be disseised by a stranger unless all are disseised, and the Grantor was not disseised, as the Grantee entered by his consent. The Grantee in such a conveyance therefore gains no seisin either by right or by wrong.-Porter vs. Hill, 9 Mass. Rep. 34.