#### * Lucy Small *versus*Samuel A. Procter.

A forcible entry, or actual ouster by violence or fraud, are not necessary to constitute a disseisin; 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.

Where a disseisor employed an agent to procure a deed from the owner of the land, to confirm his possession, and the agent took the deed in his own name, the disseisin was not thereby purged; and nothing passed by the deed.

This was a writ of dower, to which the tenant pleaded, 1. That *Daniel Small,*the husband of the demandant, was never seised of such an estate in the premises, whereof he could endow her; on which issue was joined. 2. That the premises, at the time the said *Daniel*was seised thereof, (if he ever was seised,) were wild, uncultivated, and unproductive land, without any improvement thereon, and of no annual income. Which plea the demandant *441objected to receive, as putting an immaterial fact in issue; but, being directed by the judge to reply thereto, the same was traversed, and issue joined thereon, (a)

These issues were tried at the last October term, in this county, before *Thatcher,*J., when the demandant, to maintain the first issue, produced in evidence a deed from *Henry Knox*and wife to the said *Daniel Small,*dated October 7, 1800, duly acknowledged and recorded, and conveying a tract of land including the premises, with covenants of warranty, for the consideration of 133 dollars.

The tenant offered paroi evidence, to disprove the seisin of the said *Daniel*of the premises; to the admission of which the demand-ant objected, contending that, as the tenant derived his title under the said *Daniel,*he was estopped to deny his seisin. This objection being overruled by the judge, the tenant proved that, ten years before the date of the deed above mentioned, one *Daniel Conant*took possession of the premises, and enclosed the same in fence ; and that he, and those claiming under him, have possessed the same ever since. Not long before said deed was made, it was discovered that the premises were the property of said *Knox*and wife, being part of a strip of land which lies between *Presumpscot*River and lands belonging to said *Conant,*to said *Daniel Small,*and to one *Zechariah Small,*who had also taken possession of that part of said tract which lay between their respective lands and the said river. It was then agreed, between those three persons, that they would purchase said land, and that each one should hold the * land, he had previously enclosed and then possessed. The said *Daniel Small*was appointed agent, to purchase the land for himself and the other two. He purchased the land, taking the conveyance of the whole in his own name; but all three continued to possess the land, as they had done before. The said *Zechariah*soon afterwards paid his proportion of the purchase money, but never had taken any conveyance. The witness said he did not see or know that *Conant*paid his part; but he understood that he had paid something, and that the residue was after-wards paid, when *Daniel Small*conveyed to him ; the said *Conant*then being in possession of the same, and the said *Daniel Small*never having been in possession thereof.

The tenant also produced a deed of the premises from said *Conant*to one *John Gordon,*dated July 11, 1808; and one from said *Gordon*to the tenant, dated Augustg23, 1813; all the said deeds having been duly acknowledged and recorded.

*442The demandant also proved that, in 1806, her husband claimed the premises.

On this evidence, the judge directed the jury that, if they believed that *Conant*had been in possession of the demanded premises several years before the deed from *Knox*and wife to *Daniel Small,*and was in actual possession thereof at ttife time said deed was executed, that *Daniel Small*purchased the land as the agent of *Conant,*that *Conant*had paid for the same, and that *Small*had never entered or taken possession of the land, — he could not be considered as seised of such an estate as would give his wife a right of dower, although the deed from *Knox*and wife was made to him; and that he must be considered as purchasing the premises, as trustee of *Conant,*and for his use. A verdict was returned for the tenant.

The demandant excepted to these instructions of the judge, and moved for a new trial on account thereof.

*Fitch,*for the demandant.

Seisin in fact or in law is sufficient to entitle the wife to her dower. The husband * in this case was actually seised by force of the deed of *Knox*and wife. (1)

*Knox*and wife were not disseised by force of *Conant’s*possession at the date of their deed to *Small.*Every disseisin is a trespass, and cannot be but by an adverse possession ; whereas *Conant*entered wholly by mistake, and believing that he had a right. (2)

The tenant, deriving his title from *Daniel Small,*is estopped to deny his seisin. (3) Nor is it competent to him to consider *Small*as holding in trust for *Conant.*The statute requires the declaration of a trust to be in writing. (4) Any previous agreement between *Conant*and *Small*cannot affect the operation of *Knox’s*deed ; and, indeed, as *Small*advanced the money, it was proper to take the conveyance to himself. (5)

*Longfellow,*for the tenant.

The demandant’s husband never entered on this land, never was in possession of it, nor did. he ever claim a right to it. The purchase by him of *Knox*was in fact a purchase by *Conant,*through *Small,*as his agent, and was intended only to quiet *Conant’s*title. (6) His widow imputes to him fraudulent intentions of which he never was guilty, to avail herself of the fruits of a fraud of which he was innocent.

*443The land was enclosed with a fence, by *Conant,*long before the deed made by *Knox*and wife, who were thus disseised of the land; and for that reason nothing passed by that deed.

The posterior deed of *Small*to *Conant*may be considered as a declaration of the trust in *Knox’s*deed ; and, for the purposes of justice, and to effectuate the fair intentions of the parties, may have the same operation as if originally contained in *Knox’s*deed; and in a trust estate there is no dower.

(a)

 Vide *Conner*vs. *Sheppard,*ante, 164, and note to that case, and also a note to *Sargeant & Al*vs. *Towne,*10 *Mass.*Rep. 303.

(1)

*Bac. Abr. Dower, C.*2.—5 *Mass. Rep.*352. — 7 *Mass. Rep.*254. —13 *Mass Rep.*445.

(2)

*Co. Lit.*153, b, 181, *a.*

(3)

*Bac. Abr. Disseisin, a.*

(4)

*Stat.*1783, c. 37, § 3. —13 *Mass. Rep.*443. —11 *Mass. Rep.*29.

(5)

*Bac. Abr. Uses and Trusts, E.*5.

(6)

3 *Johns.*216, *Foote & At.*vs. *Colvin, & Al*

Wilde, J.,

delivered the opinion of the Court. The demandant, to prove her husband’s seisin of the land whereof dower is demanded, proauced at the trial a deed from *II. Knox*and wife, purporting to convey the same to him in * fee; and if the deed was effectual for that purpose, the husband’s seisin would seem to be sufficiently well established; for, although there was no proof offered of the title of *JS. Knox*and wife, yet their right was not questioned at the trial, and we understand it as having been admitted by the tenant. He, however, contends that nothing passed by that deed to *Small,*because he says that *Knox*and wife were disseised at the time of its execution and delivery. Whether they were so disseised, is the first question to be determined.

Whatever may have been the ancient doctrine of disseisin, in relation to feudal tenures, it has ever been held in this state, thal an entry on vacant or uncultivated land, by one claiming to hold it having no" right, and without permission of the owner, accompaniec with occupation or open visible possession, is sufficient to constitute a disseisin. This principle has been too frequently recognized tc be now controverted. (7) Disseisin 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. *Kent,*C. J., says, in the case of *Smith*vs. *Burtis,*(8) that it lies with the disseisor to show his entry not congeable. Doubtless, this ought to be made to appear to the satisfaction of the jury; but being a negative proposition, it cannot commonly be proved by positive testimony; it may, therefore, be inferred from circumstances.

Now, in the case at bar, it is very clear that *Conant’s*entry was not made with permission from *Knox*and wife ; for it was proved, or admitted, that he had no knowledge of their title until a short time previous to the date of their deed to *Small.*It therefore suffi*444eiently appears by the report, that his entry was tortious; it not being pretended that he had then any title giving him the right of entry.

Considering, then, the entry and occupancy of *Conant*as constituting a disseisin, it remains to be determined whether * it was purged by the agreement between *Conant*and Small, relative to the purchase of the title from *Knox*and wife, and the consequent proceedings of *Small.*

A disseisin may be purged either by the disseisor’s abandonment of the possession, or his consent to hold under the disseisee. But *Conant*has never quitted possession; nbr does it appear that he ever consented to hold under *Knox*and wife. There is a wide difference between a proposal to purchase of the owner, and an agreement to hold under him by lease or otherwise. By the agreement between *Small*and *Conant,*the former was to have purchased of *Knox*and wife the land in controversy, for the use of the latter; and if the deed had been made in conformity with that agreement, it would have doubtless purged the disseisin; but it would have passed the legal estate directly to *Conant.*

We consider, however, the deed to *Small,*if valid, as vesting the estate absolutely in him, free from any trust in favor of *Conant;*which certainly is not conformable to the terms of the agreement. *Conant’s*title, therefore, was not impaired by his agreement with *Small.*A proposal to purchase, not accepted, will not purge a disseisin.

As to the supposed estoppel, whatever might be its operation in an action against *Conant,*it cannot bind the present tenant, whose title is independent of the deed from *Small.*Nothing passed by that *deed;*so that it could not work on the interest in the land, so as to run with it. *Conant,*however, was not estopped to deny the seisin of *Small.*The grantee may be permitted to show that his grantor was not seised, as is every day allowed in actions of covenant.

We think, therefore, that the judge’s direction to the jury was substantially correct; and that the evidence objected to was properly admitted. It is true, we do not agree that, by the deed of *Knox*and wife to *Small,*a trust was created in favor of *Conant;**(a)***but that point is immaterial, as nothing passed by the deed.

*Judgment on the verdict.*

(7)

4 *Mass. Rep.*416. — 6 *Mass. Rep.*229. —14 *Mass. Rep.*200.

(8)

6 *Johns*197—218.

(a)

**Vide *Jenney*vs. *Miden, 12 Mass. Rep.*375. — *Runey & Al.*vs. *Edmands,*ante 291, and *note.__Smith*vs *Lane,*3 *Pick.*205. — And see *Bullard vs. Briggs,*7 *Pick*533. — *Boyd*vs. *M’Lean, 1 Johns. Ch. R.*582. — *Botsford*vs. *Burr, ibid.*405.— *Ster*rell vs. *Sleeve,*5 *Johns. Ch. R*1.— *Dorsey*vs. *Clarke, 4 H. & J.*551. — *Slark*vs *Cannady,*3 *Litt.*399. *—Powell*vs. *Monson and Brimfield Manufac. Co*3 *Mason,*362 — Art. 5 in *Law Magazine,*No. 7. — *Kent, Comm.*2d ed. 305, 306.