#### Commonwealth *versus*Benjamin Dudley.

A, being seised and possessed of land purchased by him of B, by a deed duly executed, but not recorded, contracts to sell the land to C, and for that purpose cancels B’s deed, who thereupon, at A’s request, makes a new conveyance to C; — *401it was holden that C’s title was valid notwithstanding A continued in the occupation of the land, jointly with C, after the last conveyance.

A mere refusal to deliver possession of land when demanded, is not a foundation for the process of forcible entry and detainer. There must be some apparent violence, in deed or word, to the person of another, or some circumstances tending to excite terror in the owner, and to prevent him from claiming m maintaining his right.

This was a writ of *certiorari,*issued at the motion of the respondent, commanding *E. Wood*and *A. Heywood,*Esquires, justices of the peace for this county, to certify their doings upon a certain process of *forcible entry and detainer,*had before them on the 30th of June, 1812, upon the complaint of *Caroline Dudley*and others against the respondent, pursuant to the provisions of the statute of 1784, c. 8.

* The proceedings were in the form prescribed by [ * 404 ] the statute, and the facts in evidence to the jury are recited in a bill of exceptions offered by the defendant, which was allowed and sealed by the justices, and came up as part of the record.

The facts were, in substance, as follows: In the year 1789, one *Habalckuk Stearns,*then seised in fee of the land in controversy, made, executed, and delivered, a conveyance thereof, with covenants of warranty, to the said *Benjamin Dudley,*who thereupon entered upon, and continued in the exclusive possession of, the premises, until the year 1802, when he applied to one *Hobbs*to write a conveyance of the same land from said *Stearns*to *Samuel Dudley,*his son, observing to *Hobbs*that he had sold the land to said *Samuel,*and wished in this method to save the expense of recording two deeds. When *Hobbs*had written the deed, and it had been executed and acknowledged by *Stearns,*the former°deed was destroyed by the said *Benjamin,*or some other person, in his presence. From the delivery of the deed last mentioned to the said *Samuel*to the time of his death, in 1812, he and his father continued to live, with their respective families, in a house upon the same land; and during that period the said *Benjamin*labored on the land, principally under the direction of the said *Samuel,*and the families of both used the productions thereof. Since the death of said *Samuel,*his widow and children have continued to occupy the said house, with the said *Benjamin*and his family. After the decease of the said *Samuel, Isaac Fiske,*Esquire, was duly appointed guardian of the said *Caroline*and others, who are the children and heirs of the said *Samuel,*who died intestate. Before the said complaint was made, the said *Fiske,*guardian as aforesaid, ordered the said *Benjamin*to deliver to him the possession of the said land, which the said *B \njamin*refused to do.

*402Upon these facts, the jury returned a verdict for the complainants.

* *Hoare,*of counsel for the respondent,

moved to quash the proceedings, and contended, — 1. That nothing passed by the deed of *Stearns*to *Samuel Dudley,*and therefore his children had no estate in the land; and for this he cited the case of *Marshall*vs. *Fislce,*(1) and the other authorities in the margin. 2. If that deed operated a valid transfer of the land, and so the complainants had a good estate, yet that *Benjamin Dudley*having had the occupation and been in the quiet possession of the land for three years before the proceedings in this case were had. the statute giving the process had no application, and the proceedings were *ipso facto*void. 3. Here was no force used, nor even the appearance of it, by *Benjamin Dudley,*not even a menace — merely a demand of possession on the part of the guardian, and a refusal by the occupant. The authorities áre express that there must be some violence used, or sufficient threats to frighten the party out of possession. (2)

J. *Prescott, contra.*

The statute of the commonwealth differs from the *English*statutes upon the same subject, and from the old provincial act. By the present statute, the forms of proceeding are all prescribed, and in this case were strictly followed, except in allowing this bill of exceptions, which the justices had no authority to do. It makes no part of the record, and the Court here will not look into it, to inquire whether the jury found a right verdict or not.

*Benjamin Dudley*having bargained the land to his son, and having destroyed the deed, or assented *to*its destruction, the land revested in *Stearns,*who had then a full right to convey it to *Samuel,*and the title of the° latter was perfect, as between these parties. (3)

The facts plainly show that *Benjamin Dudley,*after the deed to his son, lived with him as servant to his son, or at most, as tenant at will, and Mr. *Fislce,*by his entry and demand of possession, determined the will.

As to the degree of force, here was all that was neces- [ * 406 J sary * to bring the case within the statute, which contemplates only a civil remedy; whereas, the former act provided fine and imprisonment, and all the proceedings were in nature of a criminal process. All the authorities cited on the other side relate to forcible entry; but to constitute a forcible detainer, an obstinate refusal to yield possession is a sufficient -foundation for this process. (4)

*403The cause being continued *nisi*for advisement, the Court, at the following March term in Suffolk, adjudged that the proceedings be quashed.

(1)

6 *Mass. Rep.*24. — 3 *Cruise on Real Property,*369, 370. — *Prec. in Chanc*235 —8 *Mass. Rep.*568. — 1 *Atk.*520, *Harrison*vs. *Owen.*

(2)

*Bac. Abr,*title *Forcible Entry,*&c., B, E, *cites Dalt.*315.

(3)

*Shep. Touch.*70.

(4)

*Co. Lit.*257.

Jackson, J.

By this writ we have laid before us the record of the proceedings had before two justices of the peace for this county on the statute of 1784, c. 8, directing the proceedings against *forcible entry and detainer.*The process was originally brought on the complaint of *Caroline Dudley*and others against *Benjamin Dudley •*and a verdict having been found against the said Benjamin, judg ment was rendered for the complainants to have restitution of the premises. The record contains a bill of exceptions, or statement of the evidence on the trial, certified by the two justices; on which three exceptions have been taken by the counsel for the respondent, as the ground of his motion to quash the proceedings.

The *first*is, that the complainants have no title to the premises in question. [Here the judge recited the evidence from the bill of exceptions, and proceeded.] On these facts, we see no reason to question the title of the complainants. Their ancestor entered in 1802, claiming under the deed to him, and continued seised untd his death. It is said that nothing passed by that deed, because of the adverse title and possession at the time in *Benjamin Dudley.*But *B. D.*had at that time cancelled his deed, and he had not then an adverse possession. He voluntarily relinquished the possession to *Stearns,*and through him to the new purchaser Even if he could be supposed still to retain the actual possession, yet the circumstances show that it was not under a claim of adverse title; which is necessary in such a case * to [ * 407 ] defeat the operation of a deed by another person. The possession by a third person of land to be conveyed by another, is not, of itself, conclusive against the effect of the conveyance. It may always be explained; as by showing that the occupant was tenant for years of the grantor, or that he held in any other manner, with knowledge of the grantor’s title, and acknowledging its validity.

It was further said that *B. D.,*having been seised under the deed to him, could not reconvey the estate to *Stearns,*merely by cancel-ling that deed; *(a)***and that *Stearns,*therefore, had nothing in the *404premises at the time of the second conveyance; and the case of *Marshall vs. Fislce*was cited as an authority in point. In that case, a third person had acquired a title under the first grantee, and this was known to *Prescott,*the second purchaser, and also to *Adams,*the original owner; after which the original deed of conveyance was cancelled, and a new deed thereof made to *Prescott.*This was the common case of an equitable title, a conveyance sufficient as between the parties, but wanting some of the solemnities pre scribed by law to prevent frauds on strangers, which shall always be good as against all strangers having knowledge of the facts. It is a rule established to prevent frauds.

ADDITIONAL NOTE.

[Where a grantee has acquired title under his deed by a change of possession, it will not be impaired by a subsequent material alteration of such deed. — *Chessman*vs. *Whittemore,*23 *Pick.*231. — But see *Pullen*vs. *Shaw,*3 *Dev.*238.

Before registration of a deed, the boundaries of another tract having been inserted in it, held, this did not avoid the deed; but, as to the land subsequently inserted, made it an unregistered conveyance. — *M’Lindon*vs. *Winifree,*3 *Dev.*262. — *Coit*vs. *Starkweather,*8 *Conn.*289. — *Jones*vs. *Jones,*1 *C. & M.*721.

Deed of land containing a well and pump, describing the land by metes and bounds. After such description, these words were interlined — “ with pump and well of water.” Held, an immaterial alteration, as it did not change the effect of the deed. — *Brown*vs. *Pinkham,*18 *Pick.*172.

The cancellation of a deed by the grantee, who holds under it, or its restoration to the grantor, does not divest the title of the former. — *Holbrook*vs. *Tirrell,*9 *Pick.*105. — *Jackson*vs. *Andrew, 4 Wend. 474.*-vs. *Page, 4 Wend. 585.—Herrick*vs. Malin, 22 *Wend.*388. — *Gilbert*vs. *Bulkley,*5 *Conn.*262. — *Bostford*vs. *More-house, 4 Conn.*550. — *Morgan*vs. *Elam, 4 Yerg.*375.

But where A conveyed land to B, and the deed was not recorded, though B occu pied under it; B then sold to C, and the deed was restored to A and cancelled ; and A made anew deed to C, which was recorded: held, C’s title should prevail over that of a creditor of B, to whom the land was subsequently set off on execution. — *Ibid.*

Where an action is brought upon the covenants in a deed, or upon a bond or other sealed instrument; upon the plea of *non est factum,*the plaintiff must show it to be the deed of the defendant, and any alteration must be satisfactorily explained. — 22 *Wend.*388.

So although it be offered without proof, as an *ancient deed.*But, it seems, a mere interlineation will be presumed to have been made before execution. — *Ibid.*— See *Newell*vs. *Mayberry,*3 *Leigh,*250. — *Mills*vs. *Starr,*2 *Bail.*359. — *Bell*vs. *Quick,*1 *Green,*312.— *Wright*vs. *Wright,*2 *Halst.*175. — *Nichols*vs. *Johnson,*10 *Conn.*192.

— *Camden,*&c., vs. *Hall,*2 *Green,*583.

An interlineation or erasure in the acknowledgment of a deed is an objection to the proof of execution, but will not avoid the deed. — *Devinney*vs. *Reynolds,*1 *Watta & Serg.*328. —F. H.]

*405In the case at bar, there was no fraud practised or attempted by *Samuel Dudley,*the second purchaser. On the other hand, it is fraudulent in the respondent to attempt to defeat a title made with his knowledge and concurrence, and for which, as it appears, he received at the time a satisfactory consideration. There being, then, no fraud in the second conveyance, nor any other circumstance in the case to take it out of the statute of 1783, c. 38, for regulating such conveyances, it seems to be settled by the words of that statute. *Samuel Dudley*entered and was seised of the premises under a deed purporting to convey them to him. He had, then, a good title as against *Benjamin Dudley,*unless the latter could hold the premises by virtue of the previous conveyance to him. That previous conveyance, not being recorded, is not good against any other person than the grantor. * The only [ * 408 ] exception to this provision of the statute is that of a second purchase, made with knowledge of the first, and with a fraudulent design to defeat it; and the case at bar is manifestly not within the exception.

The *second*objection is, that *Benjamin Dudley*had been in the quiet possession of the premises for three years and more, next before the date of the complaint, and that his estate therein was not determined. But it does not appear that he had any estate, or any possession of the premises. His son *Samuel*being on the land at the same time, the possession or seisin will be deemed to be in him who has a legal right to it; *(b)***and we have seen before that this was *Samuel,*and not *Benjamin Dudley.*This legal inference or presumption is fortified, in the present case, by the evidence produced, of *Benjamin Dudley’s*having labored on the farm, principally under the direction of his son. The jury would be warranted, under these circumstances, in finding that *Benjamin Dudley*was on the land as the servant of *Samuel,*and not under any claim of right in himself; in which case, he would never have acquired any such possession of the land as is contemplated in the statute. If *Benjamin Dudley*had no just title to the premises, he could not have acquired any estate therein by disseisin, so long as *Samuel Dudley*lived in possession and claiming the whole. His refusal to quit the premises, when requested, might be deemed a disseisin ; but if he acquired any estate in that manner, it must be a fee simple, and must take its commencement from the time of that refusal, which was not three years before the date of the complaint.

The judgment, in this case, is not a bar to any other action, to be hereafter brought by either party. But we have thought it might *406be useful to express now the opinions we entertain as to the title of the respondent. If, however, he can show a better title than he has here exhibited, or if he wishes to bring it more formally before the Court for a solemn determination, he can do so in such new action, to be brought either by or against him.

* The *third,*objection is, that there was no evidence of such force as is contemplated by the statute on which this process was founded; and on this point the Court are all of opinion with the defendant. The evidence was, that the guardian, in behalf of the complainants, who were minors, ordered the said *Benjamin Dudley*to deliver to him the possession of the premises, which he refused to do.

The material words of the statute are copied from certain ancient *English*statutes made on the same subject, and which have long since received a judicial construction. This construction would undoubtedly influence the decision of the Court, even if they could otherwise entertain any doubt of the intent of the legislature ; as it has always done with respect to the statute of limitations, and many others which are copied from *English*statutes, on the presumption that, when we adopt words which have long had a certain construction in our law books, we adopt also the same construction.

From these^authorities, as well as from the obvious and natural import of the words, it appears that something more is intended than that force which, in judgment of law, accompanies every trespass on the land of another. There must be some apparent violence offered, in deed or in word, to the person of another; or the party must be furnished with unusual offensive weapons, or attended by an unusual multitude of people; all which circumstances would tend (o excite terror in the owner, and prevent him from claiming or maintaining his rights. (5) But if a man, being in a house, refuse to open the door to one who comes to make an entry, this is no forcible detainer. So if A be in possession of a house, or have a lease thereof at the will of B, and B enters into the house and commands A to go out and leave him in possession, and A will not go out, this is not a forcible detainer. (6)

This was all that was done by the defendant in the present case. He did nothing more than is usual for one having a claim [*410] of title, which he expects and intends to try in * a due course of law. It is like an entry by one claiming title, who makes his entry in order to found thereon an action upon his own seisin; and as the same kind and degree of force are necessarv *407in a forcible detainer as in forcible entry, we could not support these proceedings against the defendant, without deciding, at the same time, that every common entry on land, by one claiming title, is forcible within the intent of this statute, *(a)*

*Proceedings quashed.*

ADDITIONAL NOTE.

[See *The People*vs. *Van Nostrand,*9 *Wend.*51. ------- vs. *Reed,*11 *Wend.*157. -vs. *Godfrey,*1 *Hall,*240. — *State*vs. *Johnson,*1 *Dev. B. 324.—Dutton*vs. *Tracy,*4 *Conn. 79.—Bliss*vs. *Bange,*6 *Conn.*78. — *Marley*vs. *Rodgers,*5 *Yerg.*217. — *Edwards*vs. *Batts,*5 *Yerg.*441.— *Trousdale*vs. *Darnell, 6 Yerg. 431.—Petty-john*vs. *Akers,*6 *Yerg.*448.— *Quertemus*vs. *Breckinridge,*5 *Dana,*125*—Smith*vs *White,*5 Dana, 381. — *Snedecker*vs. Quick, 7 *Halst.*129. — *Allen*vs. *Smith,*7 *Halst*199. — *Hendrickson*vs. *Hendrickson, 7 Halst.*202. — *Brick*vs. *Middleton, 7 Halst*266.— *Cunningham*vs. *Green,*3 *Alab.*(N. S.) 127.—F. H.]

(a)

 [According to the report of the case, the estate had been vested in *Benjamin Dudley*more than thirteen years before the conveyance to *Samuel Dudley;*and the deed made to *Benjamin*was not, in fact, cancelled until after the execution of the deed to *Samuel.*As the estate had actually passed, the cancelling of the deed surely could have no such effect in law as to revest the legal title in the original grantor" This could only be done by deed. — *Marshall*vs. *Fisk,*6 *Mass. Rep.*32. — *Dana*vs. *Newell,*13 *Mass. Rep*498. — *Roe*vs. *Archbishops of York,*6 *East,*86. — *Hudson’s*case, *Pree Chan.*235. — *Bolton*vs. *Carlisle,*2 *H. Bl*259. — *Doe*vs. *Hirst,*3 *Stark. N. P. C.*60 *404— 1 *Atk. Con.*387. — *Dixon,*588. *—Shep. Touch, by Preston, 70.—Gilb. Ev.*109, 110. — *Cruise, Ch. 25,*tit. 32, s. 18, 19, 20, 21. — *Doe*vs. *Bingham,*5 *B. & A.*677.— *Woodward*vs. *Aston,*1 *Vent.*297.— *Townson*vs. *Tickell,*3 *B. & A.*31. — The distinction which the learned judge makes between this case and the cases where the rights of a third person have intervened, has not a single authority to support it. *Stearns*had already parted with all the interest he had in the lands; and it is clear “ nemo plus juris ad alium transferre potest quam ipse haberet.” — *Dig.*lib. 50, t. 27, c. 54.— “ Nemo potest quod non habet dare.” — *Ibid. Gothof.*n. 9. — The deed of *Stearns*to *Samuel,*therefore, was no more efficacious than the deed of any stranger having no title would have been, to pass a legal title to *Samuel.*—Ed.]

(b)

*[Codman & Al.*vs. *Winslow,*ante, 146. — *Brimmer*vs. *Prop. Long Wharf, 1 Pick.*131. —Ed.]

(5)

 1 *Hawk. P. C.*c. 64, § 25, &c. — *Dalt. Just.*126.

(6)

*Dalt. Just.*302. — 1 *Hawk. P. C.*c. 64, § 30.

(a)

*[Com. Dig., Forcib. Det.*B, 2.— 1 *Russ. C. and M.*289, 2d ed. — Ed.]