#### Asaph Leonard and Others *versus*Daniel Leonard.

Of the seisin necessary to maintain a writ of right

[Where lands were devised to four brothers, one of them a minor, and the three of age agreed to divide the whole lands between them, and one of them, the ancestor of defendant, having received from the others a certain sum of money, agreed to purchase other lands for the minor, and satisfy him for his portion, according to the judgment of indifferent men, and save the executors harmless from all claim of the minor when of age ; and the defendant’s ancestor took possession of the d manded premises devised as aforesaid, and he and his heirs occupied them for more than sixty years without any claim ever having been made by the minor before or after coming of age, or by his heirs, till the bringing of the suit after this lapse of time; and the minor, when of age, having received certain lands and money in part compensation for his portion, and a conveyance of other lands having been awarded to him for the residue, which had never been conveyed; — held, that his heirs, the demandants, were barred by the possession of defendant and his ancestor for more than sixty years. — Ed.]

This was a writ of right, brought to recover one fourth part of a tract of land described in the count. The demandants counted *281upon the seisin of their father, *Russell Leonard,*within sixty years from the date of their writ, August 12, 1812; and issue was joined upon the mere right.

At the trial of this issue, which was had before *Parker,*J., at the last April term here, the demandants proved that their grandfather *John Leonard,*in November, 1744, died seised of the premises described, having, by his last will and testament, devised the same to his four sons, *John, Daniel, Asaph,*and *Russell,*the last being the father of the demandants ; which will was proved and allowed on the 11th of December, 1744.

It was then agreed by the parties, that *Russell Leonard,*at the death of his father, was a minor of about fourteen years of age, having been born December 21, 1730; that the three elder brothers, who were of age, agreed to divide the estate devised between them; and also that *Daniel,*the father * of the [ * 282 ] tenant in this action, should take *Russell’s*share or proportion, and should purchase for him lands, to make him a farm when he should come of age, equal to the value of his proportion in their father’s estate. Upon this agreement, *Daniel,*within a year of his father’s death, took into his possession the land demanded, and occupied the same until his death; and the same descended 1o his children, of whom the tenant is one, and it has been occupied by them until this action was brought.

No conveyance whatever has passed from the said *Russell*to the said *Daniel;*but, on the 4th of May, 1748, the said *Daniel*made and subscribed an instrument in writing, a copy of which came up in the case, which purports an acknowledgment by the said *Daniel*of the receipt of a sum of money from his brothers *John*and Asaph, being a part of their deceased father’s estate, to purchase a certain tract of land for the said *Russell’s*share of the said estate; and an engagement, on the part of *Daniel,*to pay to *Russell*his portion of his father’s estate, according to the judgment of indifferent men, and to indemnify the executors of their father’s will against any demands from said *Russell,*when he should come of age.

*Russell Leonard*lived with his mother, in the mansion-house of his father, until he was twenty-seven years of age, when he removed into a house of his own; neither he nor his heirs ever having entered upon or claimed the premises demanded, except by the present suit.

On the 8th of March, 1756, *Daniel Leonard,*father of the tenant, executed and delivered a conveyance of a tract of land to the said *Russell,*in pursuance of the above-mentioned agreement between the brothers, and soon after paid him several sums of money on *282the same account. In the year 1771, the said *Russell*having claimed of the said *Daniel*further compensation, they agreed upon certain arbitrators, who were to adjust the claim, and to declare what was further to be done by the said *Daniel*in execution of the agreement aforesaid; and the said arbitrators awarded [ * 283 ] that the *said *Daniel*should convey to the said *Russell*certain tracts of land mentioned in the said award. The said *Russell*afterwards, in pursuance of said award, took possession of the said tracts of land, but never received any conveyance of the same; and he has since been ejected therefrom by the tenant and his brothers, the heirs of said *Daniel.*

The judge before whom the cause was tried was of opinion, and so instructed the jury, that the demandants had not shown any actual seisin of their ancestor within sixty years; and so could not, by reason of the act for the limitation of real actions, recover in the present action. A verdict was accordingly returned for the tenant; and a new trial was moved for by the demandants, for a misdirection in matter of law.

*Bliss*for the demandants.

*Hooker*and *Ashmun*for the tenant.

The action was continued *nisi*for advisement, and at the following March term in *Suffolk,*judgment was rendered according to the verdict.

*Curia.*

We think the verdict in this case must be confirmed; and that the opinion given at the trial, and by which the jury were directed, was undoubtedly correct.

The tenant shows a seisin in himself, and his ancestor, *Daniel Leonard,*of more than sixty years before this action was commenced ; that is, from 1748, the date of his agreement for a compensation to *Russell;*which serves at least the purpose of proving an ouster of *Russell*from the demanded premises, or a sole and exclusive seisin claimed on the part of *Daniel.*He had then the possession and seisin, declaring his intention to exclude *Russell*therefrom; and in this exclusion *Russell,*after he came of age, acquiesced, and received, in part at least, the compensation provided for him by the agreement among his brethren, the co-devisees named in the will of their father.

Admitting the presumption of law to be, as the counsel for the demandants contended, upon the fact of a devise to the [ * 284 ] four brothers, and a possession by one of them, if* nothing more was proved, that it must be construed the seisin of the co-devisees; yet the agreement of the three brothers then of age, and the entry of *Daniel,*pursuant to that agreement, and in *283execution of their design to exclude *Russell,*and to refer him to a provision to be made for him by *Daniel,*repels all presumption of a continued seisin in *Russell.*

There is, therefore, the fullest evidence that can be required in any case, to prove a disseisin of *Russell;*and there is no evidence, on the part of the demandants, to prove that *Russell,*by any act or entry of his, had any seisin, in law or in fact, within sixty years before the action brought, as in their writ is alleged. This allega tion is essential to be proved in support of their right of action; and, failing in this, the tenant was entitled to a verdict, *(a)*

*Judgment on the verdict.*

(a)

 [Vide *Cummings*vs. Wyman, post, 464. — *Brown & Al.*vs. *Wood & Ux.*17 *Mass. Rep.*68. — *Shumway*vs *Holbrook,*1 *Pick.*114. — *Barnard*vs. *Pope,*14 *Mass. Rep.*434. — *Higbee*vs. *Rice,*5 *Mass. Rep.*344.— *Chapman*vs. *Gray,*15 *Mass. Rep 439 - Ed.]*