#### Isaac Burghardt *versus*Benajah W. Turner.

In a real action a copy of a registered deed made to a common ancestor of the par ties, is admissible in evidence, if there is no reason to presume the original deed to be in the possession of one party rather than the other.

If an original proprietor, seised as tenant in common with others, of a township of land, and entitled to a certain number of acres as his share, makes a grant of the land before it is located to him, his title passes by the deed, and upon a location being made to his right, the land vests in his grantee in severalty.

A grant of land in fee to two persons *"*jointly, to be equally divided between them,” creates a tenancy in common by virtue of *St.*1785, *c.*62, § 4, if not at common law.

An award made more than forty years ago, of a partition of land among heirs, without proof of any submission, was *held*not to be binding as an award.

Whether a grant oy a tenant in common to his co-tenant, or a disseisin by the co-tenant, or a partition, of open, unenclosed woodland, can be presumed from possession and acts of ownership by the co-tenant, *quaere.*But at any rate, the evidence of an open, undisputed, adverse possession must be very clear, in order to raise such a presumption.

Writ of entry ; in which the demandant claims one fourth of two fifths of 22J acres of land situate in Great Barrington, being part of 100 acres laid out to the original right of Coon-rod Burghardt.

The declaration alleges that Lambert Burghardt, the father of the demandant, was seised of the land within thirty years, and was disseised by John Whiting ; and that the right descended to the demandant as son and heir of Lambert. The tenant pleads that Whiting did not disseise Lambert.

At the trial, before *Morton*J., the demandant offered in evidence an original proprietors’ book, containing a location to Coonrod Burghardt, of 100 acres. This location bears date May 1774. He then offered in evidence an office copy of a registered deed from Coonrod Burghardt to his sons Peter and Jacob Burghardt, bearing date April 5, 1746. The defendant objected to the use of the copy. This deed conveys the 100 acres to Peter and Jacob Burghardt “jointly and equally to be divided between them,” habendum “ to the sole and proper use of said Peter and Jacob, their heirs and assigns.” *541Peter died June 15, 1787, leaving a son, viz. Lambert, and three daughters, viz. Gesha, who marred David Crossman, Hannah, who married Oliver Ingersoll, and Fichey, who married Josiah Dewey. Gesha died, leaving a daughter Mary, who married Nehemiah Clossen. Lambert died May 28, 1821, leaving four children, of whom the demandant is one. Jacob survived Peter, and died without children, but leaving four brothers and four sisters living or who had died leaving children. The land claimed was covered with wood and timber, and had been used for obtaining firewood and timber.

The tenant contended, that the demandant, from his evidence, was entitled to recover only one eightieth of the 22£ acres described in the declaration, on the ground that the deed to Peter and Jacob Burghardt created a joint tenancy, and by the death of Peter the estate vested wholly in Jacob, upon whose death the demandant would be entitled to one fourth of two fifths of one eighth of the land. If the deed to Peter and Jacob created a tenancy in common, then the tenant maintained, that the demandant would be entitled to only one fourth of two fifths of one half of the land. It was ruled by the judge, that the deed operated as a conveyance to Peter and Jacob as tenants in common.

But the tenant denied any right in the demandant to maintain the action ; and for the purpose of supporting this defence, he offered in evidence a deed from Nehemiah Clossen and his wife to Benedict Dewey, a distribution of Benedict Dewey’s estate among his heirs, and an assignment of a certain part to Abigail Dewey, a deed from the guardians of Abigail, under a license to sell, to John Whiting, and a conveyance from Whiting to the tenant.

The tenant maintained, that if the land in controversy was at any time, in any part, the property of Peter Burghardt’s heirs, yet it had been assigned in severalty to Mrs. Clossen.

The tenant proved that no record could be found of any distribution among the heirs of Peter, in the probate office, or any deeds of partition among them, in the registry of deeds, and offered to prove this partition by presumption arising from the following facts, viz. that Peter Burghardt left a large real estate ; that Lambert went into occupation in severalty of a *542portion at least equal to his share, and continued so to occupy it until June 1820, when he conveyed the same to the demandant, with the exception of a part he had previously conveyed to his other, son on October 27, 1808 ; that Oliver Ingersoll and his wife, on November 8, 1787, conveyed 36f acres of this 100 acre lot to Daniel Nash, and that Josiah Dewey and his wife conveyed 10J acres of the same lot to Nash ; that Nehemiah Clossen and his wife, on April 18, 1791, conveyed a part of the same lot to the inhabitants of Great Barrington ; that some acts of possession were done by Benedict Dewey ; that the demanded premises were inventoried and distributed as part of the real estate of Benedict Dewey ; that John Whiting entered and occupied by cutting large quantities of wood and timber for twenty-five years ; that Lambert Burghardt, during his life time, resided within three miles of the demanded premises and at no time objected to these acts of possession and occupancy; that there were certain marked trees which had for a long time been known to designate the partition or boundary line between the 22J acres in question, and the land sold to Nash by the two other heirs of Peter Burghardt; and that the cutting of wood and timber had for twenty-five years last past been extended to this line. This evidence was rejected by the judge, and the question of its admissibility was reserved for the whole Court

*Sept. 19th.*

The demandant then offered in evidence a certain paper ■dated September 1787, purporting to be an award of a settlement of the estate of Peter Burghardt among his heirs. This document assigns to his three daughters about 77 acres of the 100 acre tract, but makes no disposition of the 22¿ acres in controversy. It was made a part of the case, subject to all objections which might be taken to it.

If upon the whole case the Court should be of opinion that the jury could not, upon legal principles, have returned a verdict for the tenant, he was to be defaulted and judgment to be entered for the demandant for such a proportion of the estate as the Court should order ; if otherwise, the Court were to order a new trial or a nonsuit, as the case might require.

*Bishop*and Jones, for the demandant,

cited to the point, that the copy of Coonrod Burghardt’s deed was admissible in *543evidence, *Eaton,*v. *Campbell,*7 Pick. 10; .that this deed created a tenancy in common and not a joint tenancy, *St.*1785, c. 62, § 4 ; *Miller*v. *Miller,*16 Mass. R. 59 ; *Annable*v. *Patch,*3 Pick. 363 ; that the evidence offered by the tenant and rejected, was not competent nor sufficient to warrant the presumption of a conveyance of the demanded premises to Mary Clossen in severalty, 2 Bl. Com. 263; *Clark*v. *Faunce,*4 Pick. 245 ; *Holyoke*v. *Haskins,*5 Pick. 27 ; Stearns on Real Actions, 39, 40; *Kennebeck Purchase*v. *Springer,*4 Mass. R. 416 ; *Small*v. *Proctor,*15 Mass. R. 495 ; *Pray*v. *Pierce, 7*Mass. R. 383 ; *Poignard*v. *Smith,*8 Pick. 272 ; *Brimmer*v. *Long Wharf,*5 Pick. 135; and that the award and deed of settlement of Peter Burghardt’s estate were rightfully admitted in evidence, *Stockbridge*v. West *Stockbridge,*14 Mass. R. 261.

C. «3. *Dewey*and *Porter,*for the tenant,

insisted that the copy of Coonrod Burghardt’s deed was not admissible in evidence, because the muniments of Peter’s title would naturally pass into the hands of his son Lambert, and thence into the hands of the demandant as an heir of Lambert; 1 Stark. Ev. 328; *Andrews*v. *Hooper,*13 Mass. R. 475 ; *Tucker*v. *Welsh, 17*Mass. R. 165 ; *Hathaway v. Spooner,*9 Pick. 23; that actual seisin in Lambert must be proved, this land, though covered with wood, not being wild land ; Jackson on Real Actions, 4 ; Stearns on Real Actions, 32, 33, 193 ; that if it is regarded as wild land, then Lambert was disseised by Benedict Dewey more than thirty years before the action was brought; *Kennebeck Purchase*v. *Springer,*4 Mass. R. 416 ; that the evidence offered by the tenant was competent and sufficient to authorize a jury to presume a partition by which the demanded premises were assigned in severalty to Mary Clossen ; Stearns on Real Actions, 238, 239, 240 ; *Jackson*v. *M'Call,*10 Johns. R. 377; *Gray*v. *Gardner,*3 Mass. R. 399 ; *Colman*v. *Anderson,*10 Mass. R. 105 ; *Clark*v. *Faunce,*4 Pick. 245 ; *Jackson*v. *Murray,*7 Johns. R. 5 ; *Archer*v. *Saddler,*2 Hen. & Munf. 370 ; *Allston*v. *Saunders,*1 Bay, 26 ; *Fishar v. Prosser,*Cowp. 217 ; *Hepburn*v. *Auld,*5 Cranch, 262 ; that the award and deed of partition were not competent evidence, as they had not been recorded; *544but if competent, yet as they purport to make a final settle* ment °f all Peter Burghardt’s real estate among his heirs, and do not embrace the *22\*acres, the inference must be that he had conveyed this portion of his land before his decease.

*Per Curiam.*

The first question is, whether the copy of a registered deed from Coonrod Burghardt to his sons Peter and Jacob, was rightly admitted in evidence. The Court are of opinion that it was. The deed was made in 1746, to a common ancestor, and there is no reason why the original should be in the hands of one heir rather than another. In England there is no registry, and the muniments accompany the title and may usually be produced by the party having the title. A different rule prevails in this Commonwealth. From the earliest times deeds have here been recorded, and a copy from the registry has in practice been deemed competent evidence, except where, in the ordinary course of things, the original must be presumed to be in the custody of the party offering the evidence. Considering the antiquity of this deed, and the relation of the parties to each other, the copy was properly admitted.1

We are then brought to the question, what was the effect of this deed from Coonrod Burghardt to Peter and Jacob. It was made almost thirty years before the location, but we think nevertheless that the estate passed by the deed. Coonrod, as an original proprietor, was seised as a tenant in common with others, ol the land in question, together with the residue of the township. It was not uncommon in the settlement of townships, to express such an interest in common, by acres..

The location was not the grant or title, by which the land passed; but it was in the nature of a partition, by which an undivided interest in a larger tract is changed into a several interest in a part of the same land. It is conceded that this location embraced the 100 acre tract in which the land de*545manded lies. When therefore it was thus located and set off to the right of Coonrod Burghardt, it vestéd in Peter and Jacob, by force of his deed to them.

Then the question is, whether this deed created an estate in joint tenancy or a tenancy in common in Peter and Jacob. Viewing it as a question at common law, there does not appear to be any considerable difficulty in it; but it is unnecessary to express an opinion upon that point, because the Court are of .opinion, that by force of the statute these grantees became tenants in common. *St.*1785, c. 62, § 4. This statute went into operation and took effect in June 1786, and Peter Burghardt died in June 1787, leaving Jacob surviving him.

This statute provides, that gifts, grants, &c. which have been or shall be made to two or more, shall be taken to be estates in common and not in joint tenancy, unless there are words clearly expressing an intent to create a joint tenancy. It is no objection to the application of this provision, that the deed had been previously made and had already created an estate in joint tenancy. Still the effective force and operation of the statute was prospective. It declared how a deed should be affected by events then future. It is the same in legal effect, as if it had provided, that upon the future decease of a joint tenant, under certain circumstances, the principle of survivorship should not operate. It was not retrospective in the sense of affecting any vested rights. There being no words in this deed manifesting a plain intent to create a joint tenancy, even if it would have had that operation at common law, the statute took effect, and by force of it the estate of Peter and Jacob, before the death of either, became a tenancy in common.1

Then the principal inquiry is, how the estate passed. The first question is, whether the tenant shows a title in himself. *546The evidence is in the conveyance by N. Clossen and wife to Benedict Dewey, and a descent to Josiah Dewey, and through him to his daughter, and a conveyance by her guardian to Whiting, and by Whiting to the tenant.

The Court are clearly of opinion, that the evidence offered by the tenant would not warrant the jury in finding a partition, or a conveyance by which Mary Clossen acquired an estate in •severalty. The award is relied on, as showing a division among the heirs of Peter Burghardt. It appears to be an award of partition; there is however no agreement to refer, and so it is not binding as an award , but there is a deed of confirmation among the heirs, which is good and available as such. To make the deed evidence, it should be registered ; ■but it is acknowledged and may be registered and thus made competent evidence. This settlement not embracing the 22| acres, the parcel in controversy, leads to a strong presumption that this land has not been divided as part of Peter Burghardt’s estate.

Then how does Mary Clossen become entitled ? There being no evidence of partition or division of this parcel, in the probate office or elsewhere, it cannot be presumed to have been assigned to her as her share or purparty ; of course it must be considered as remaining undivided.

Had it been first proved that she was seised, then the deed of herself and husband would have given a title to Benedict Dewey. This was a deed in general terms, by which Nehemiah Clossen and Mary his wife conveyed to Benedict Dewey, all her right, title and interest in the hundred acre tract, not describing or specifying the land now in controversy. Now, although this would have been quite sufficient to pass the land in question, if it were first proved that Mary Clossen was seised, yet it had no influence in settling the question whether she was seised. This deed then leaves the question of title just where it was before.

. The tenant also relied upon evidence of possession, acts of ownership and other circumstances, tending to show that there had been some grant or partition now lost, by which this tract had been set off or assigned to Mary Clossen. The tract in question being open, unenclosed woodland, very clear evidence *547ot an open, undisputed adverse possession must be given, to show either a disseisin, or a non-appearing grant; if indeed any act of this description, by one tenant in common, can be deemed evidence of disseisin, or raise a presumption o" grant, against another. All the acts of this description done after the sale to Whiting, are too recent to have this effect; and the Court are of opinion that the jury would not have been warranted in presuming a partition or grant from this evidence, and that it was rightly rejected.1

The title then must depend upon the documentary evidence. The evidence shows that Peter and Jacob Burghardt were ■ seised, and the legal presumption is, that they continued seised until an alienation or descent is shown. They being tenants in common at Peter’s death, one undivided half descended to his heirs. By the law in force at his death, *St.*1783, c. 36, § 1, the eldest son was entitled to a double share. Lambert, the father of the demandant, therefore, had two fifths and his three sisters one fifth each. The demandant is one of the four heirs of Lambert. He will therefore take one fourth of two fifths of one half, equal to two fortieths or one twentieth, of the land described in the writ.

But the demandant is also entitled to a small share as the heir of Jacob. It appears that Jacob died without lineal descendants, leaving his estate to eight brothers and sisters, or their children, of whom his brother Peter’s children constituted the representatives of one share. As heir of Jacob, therefore, the demandant takes one fourth of two fifths of one eighth of one half, equal to two three-hundred-and-twentieths or one one-hundred-and-sixtieth part.

*Tenant defaulted.*

1

 See *Ward*v. Fuller, 15 Pick. 185; *Scanlan*v. Wright, 13 Pick. 523; *Dick*v. Batch, 8 Peters’s S. C. R. 30; *Hellman*v. Hellman, 4 Rawle, 440; *Snyder*v. Bowman, 4 Watts, 132; *Southerin*v. Mendum, 5 N. H. R. 420; *Montgomery*v. Dorion, 6 N. H. R. 250; *Woodman*v. Coolbroth, 7 Greenl. 181; *Kent*v. *Weld)*3 Fairf. 459; *Smith*v. Wilson, 1 Dev. & Batt. 40; *Mitchell*v. Mitchellt 3 Stewart &. Port. 81.

1

 By Rev. Stat. c. 59, § 10,11, conveyances and devises of land to two or more persons, shall be construed to create estates in common, unless it shall be expressed therein, that the grantees or devisees shall take the lands, jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them; but this construction is not to be applied to mortgages, nor to devises or conveyances made in trust, or made to husband and wife, nor where it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy. See *Martin*v. *Smith,*5 Binn. 16; *Evans*v. *Britain,*3 Serg. & R. 138.

1

 See *Rickard*v. *Rickard,*13 Pick. 251; *Kendall*v. *Lawrence,*22 Pick. 640; *Whiting*v. *Dewey,*15 Pick. 428.