#### Stephen Cleverly *versus*Aaron Whitney.

Where a writ of entry brought by the grantee in the name of the grantor to recover laud of which the grantor was disseised at the time of the conveyance, was commenced without the knowledge of the grantor, but was prosecuted with his consent, the Court refused to order a nonsuit.

*Entry sur disseisin.*The tenant pleaded the general issue He also pleaded in bar, that the demandant, on the 19th of January, 1826, executed a deed of the demanded premises, for a valuable consideration, to one Edgarton, and that the demandant and Edgarton both knew of the tenant’s adverse pos*38session and claim of title, and that tins action was commenced and prosecuted by Edgarton, at his own cost and risk, against and without the consent of the demandant, who had no interest therein. On these pleas issue was joined.

*Sept, 30th.*

At the trial, before *Parker*C. J., evidence was produced tending to show the assent of the demandant that the action should be prosecuted in his name. The tenant also offered evidence of the declarations of the demandant made after such supposed assent, tending to prove a dissent.

The jury were instructed, that although they might believe the action was commenced by Edgarton without the knowledge and against the consent of the demandant, yet if they found an assent of the demandant at any time afterwards, they ought to find that the action was still prosecuted with his assent, although such assent had been withdrawn.

A verdict was found for the plaintiff on the general issue, and on the other issue a special verdict was returned, stating that the action was commenced without the knowledge of the demandant, but that it was prosecuted with his consent, and that he made a deed to Edgarton for the purpose of dispossessing the tenant.

If the foregoing direction was wrong, a new trial was to be granted ; otherwise judgment was to be rendered for the plaintiff, unless the Court should be of opinion, on a view of the whole case, that he was not entitled to recover ; in which event he was to become nonsuit

*Burnside*and Hinds, for the tenant,

said that buying and selling a pretended title being an offence at law, the Court would not aid the parties in giving effect to the transaction ; and they distinguished this case from *Brinley*v. *Whiting,*5 Pick. 348, inasmuch as that action was commenced and pros ecuted with the authority of the nominal demandant. The instruction that the demandant could not withdraw his assent was erroneous ; *Swett*v. Poor, 11 Mass. R. 549 ; and the finding of the jury, that the action was prosecuted with his assent, may have been grounded on this instruction. But a bare assent is not sufficient. Edgarton should have shown an authority to commence and prosecute the action.

J. *Davis*junior and *Merrick, contra,*relied on *Brinley*v

*39
      *Oct. 4th.*

*Whiting.*The deed from Cleverly will operate as a conveyanee by way of estoppel, after he shall have recovered seisin ; *Somes*v. *Skinner,*3 Pick. 52 ; and the Court therefore will not permit him to retract his assent to the use of his name in this action. *Jones*v. *Witter,*13 Mass. R. 304; *M'Cullurm*v. *Coxe,*1 Dallas, 139 ; *Raymond*v. *Squire,*11 Johns. R. 47.

*Burnside,*in reply,

observed that the principle of ratification applies in the case of a legal act, and not to an act of mainte nance.

*Per Curiam.*

The general subject of this case was before us in the case of *Brinley*v. *Whiting.*It was clearly shown there, that although the sale of a pretended title may be a crime,1 yet it does not operate as a forfeiture of the title to the estate ; nor as a bar to a recovery in an action by the grantor.

If a forfeiture were the penalty, it would not enure to the tenant, who is a stranger.

The tenant however contends that a nonsuit should be ordered, because the action was commenced without the knowledge, and carried on without the assent, of Cleverly. But the jury have found that Cleverly assented to the prosecution of the action. A judgment will give him possession of the land.

Whether Edgarton can avail himself of it, need not now be considered. Whether the sale is void, or operates as an estoppel, it is not necessary to decide. Doubtless, if Cleverly recovered and made a *bona fide*conveyance to a third person, it would hold against Edgarton. Cleverly must in many respects be considered as the real demandant. Judgment would be entered in his name ; he would have a right to discontinue, and the conveyance to Edgarton would be so far void as not to prevent his becoming nonsuit. No objection was made to the appearance of counsel for the demandant at an early stage of the action, and though Cleverly may have said out of court that he had no knowledge of its being commenced, and that he was willing to have it discontinued, this could not affect his right to proceed. The evidence in regard to his dissent is at least ambiguous, and it does not appear that he has done any act in court requiring a discontinuance.

*Judgment for demandant.*

See *Brinley*v. *Whiting,*5 Pick. (2nd ed.) 353, note 1.