It is obvious how a man may visibly be the copyholder or customary freeholder de facte, in prejudice of the rightful tenant:

"will adjudge him in possession that has the right. This court "has frequently recognised the same rule, that an entry not appearing to be hostile, was to be considered an entry under the "title of the true owner." Smith ex dem. Teller & Al. vs. Burtis & Al. 6 Johns. Rep. £18. (per KENT, Ch. J.)

The extent of an execution on lands gives the creditor an actual seizin of the lands. Wyman vs. Bridgen, (4 Mass. Rep. 150.) The extent of an execution upon land not belonging to the judgment debtor gives no seizin thereof to the creditor. Burnell, 9 Mass. Rep. 96. Brazier, 3 Ibid. 539.

Same vs. Same, 11 Ibid. 163

Bott vs.

Gore vs.

"Although there may be a concurrent possession, there cannot be a concurrent seizin of lands." Langdon vs. Potter & Al. 3 Mass. Rep. 219. (per PARSONS. Ch. J. delivering the Opinion of the Court.) Proprietors of Kennebeck Purchasevs. Call, 1 Mass. Rep. 488.

In every case of a mixed possession, the legal seizin is according to the title." Codman & Al. vs. Winslow, 10 Mass. Rep. 151. Commonwealth vs. Dudley, Ibid. 408.

The seizin of lands belonging to the Indian tribes is in the Sovereign, and the Indians are mere occupants. Jackson ex demSparkman vs. Porter, 1 Paine's Rep. 457. Johnson vs. Mc Intosh, 8 Wheat. Rep. 588, 592, 595, 596. Fletcher vs. Peck, 6 Cranch's Rep. 142. & vide Cocke's Lessee vs. Dotson & Al. 1 Ten. Rep. 169.

In the case of The Proprietors of township Number Six vs. Jones, (12 Mass. Rep. 337,) PARKER, Ch. J. delivering the Opinion of the Court, said, " But their [the Demandants']"title commenced in 1762, by thegrant of the Provincial Legislature : "which, although depending upon the approbation of the Crown, "which was never obtained, conveyed a seizin to the Proprietors; "and the resolves of the Legislature after the revolution, both in "terms and legal effect, amounted to a confirmation of a defeasi"ble title before existing."

In the case of Adams vs Frothingham, (3 Mass. Rep. 352. 363.) the tenant's counsel insisted at the trial the demandant's ancestor could have been seized of the flats [part of the demanded premises] only as they in fact existed at his death, and that none which had been made by Alluvion could be recovered by the presen demandant, who counted not on her own seisin, but only on the seisin of her ancestor. But the Judge directed the jury that, if the Ancestor were seised of the flats within sixty years, whatever increase there had been, rightfully accrued to the demandant as his heir. The jury found a verdict for the demandant, and the tenant, upon a bill of exceptions, moved for a new trial; but the

It is obvious too, that usurping such copyhold or customary tenure, is a different fact from a naked possession or occupation of the land.

*Disseisin was a complicated fact, and differed from [ *20] dispossessing. The freeholder by disseisin differed from a possessor by wrong. [1] Bracton, c. 2. de Assisa No

.

Court Held, That whatever increase happened from natural causes, or from an union of natural and artificial causes,must be to the benefit of him who owned the flats to which the increase was attached; they said "This increase is of necessity gradual and imperceptible. "No man can fix a period when it began. No testimony can mark "the exact margin of the channel on any given day or year. The * ancestor being seized of the estate, of which all the flats now de"manded are part, and having the right by law to all such addi"tions as should be made by the gradual retiring of the waters, "he must be supposed to have been seized of all which now ex"ists, for no one can shew any parcel of which he was not seiz"ed. We think the Opinion of the Court, delivered at the trial, "right on this point.'

"The law upon this subject seems to be very well settled, when "a man is once seized of land, his seizin is presumed to continue, "until a disseisin is proved. When a man enters on land claim"ing a right or title to the same, and acquires a seizin by his en "try, his seizin shall extend to the whole parcel, to which he has " right; for in this case an entry on part is an entry on the whole.” Proprietors of the Kennebeck purchase vs. Springer, 4 Mass. Rep. 417, 418. (per PARSONS, Ch. J. delivering the Opinion of the Court.)

"It is also well settled that where there is evidence of a law"ful title accompanied with seisin and possession, it is presumed "to continue in the lawful owner, and his heirs and assigns, until an actual ouster and disseisin shall be proved" Brimmer vs. The Proprietors of Long Wharf, 5 Picker. Rep. 135. (per PUTNAM, J. delivering the Opinion of the Court.)

[1] But the Disseisor is a "possessor by wrong," his possession is not only held, but was originally acquired by wrong.

"Disseisin is an estate gained by wrong and injury; and therein it differs from dispossession which may be by right or wrong. This is the uniform language of the best authorities from the time of Littleton. (Litt. s. 279. Co. Litt. 3. b. 18 b. 153 b. 181. a. Cro. Jac. 685.1 Salk. 246. n 2. 1 Burr. 109.") Per KENT, Ch. J. delivering the Opinion of the Court in Smith ex dem. Teller & Al. vs. Burtis & Al. 6 Johns. Rep. 217. Doe ex dem. Arden & Al. vs. Thompson, 5 Cow. Rep. 374.

væ Disseysinæ, fo. 160. puts many cases of possession wrongfully taken, which he calls intrusion; because there is no disseisin: "Possessio quæ nuda est omnino, et sine aliquo vestimento, quæ dicitur intrusio." Vestimento is seisin, investiture; (from whence the Saxon word Vest ;) a metaphor the feudists took from clothing: by which they meant to intimate, "that the naked possession was clothed with solemnities of the feudal te

nure.

After the assise of novel disseisin was introduced, the legislature, by many acts of parliament, and the courts of law, by liberal constructions in furtherance of justice, extended this remedy, for the sake of the owner, to every trespass or injury done to his real property; if, by bringing his assise, he thought fit to admit himself disseised.

Littleton, who wrote long after the remedy by assise was enlarged, and speaks of disseisins with an eye to that remedy, defines disseisin [2] with an &c.(a) Where a man enters into

(a) Litt. sec. 279.

[2] "A mere entry upon another is no Disscisin, unless it be "accompanied with expulsion, or Ouster from the freehold."Smith ex dem. Teller & Al. vs. Burtis & Al. 6 Johns. Rep. 217 (per KENT, Ch. J. delivering the Opinion of the Court.) Dor ex dem. Arden & Al. vs. Thompson, 5 Cow. Rep 374 (per WOODWORTH. J. delivering the Opinion of the Court.) Jackson ex dem. Van Alen vs. Rogers, 1 Johns. Cas. 36. & vide Jackson ex dem. Hardenbergh & Al. vs. Schoonmaker, 4 Johns. Rep. 390.—Simpson & Al. vs. Shannon's Heirs,3 Marsh. Rep. (Ky.) 463. Norcross, Executrix vs Widgery, 2 Mass. Rep. 508-Jackson ex dem, June, vs. Raymond, 1 Johns. Cas. $6 (note.)

"A peaceable entry upon Land, apparently vacant, furnishes, "per se, no presumption of wrong." 6 Johns. Rep. 218.-5 Cow. Rep. $74.

The Disseisor is "bound to shew his tortions seisin affirmatively." 5 Cow. Rep. 374.-6 Johns. Rep. 118.

Where the entry is congeable, it cannot work a Disseisin. Ricard vs. Williams & Al. 7 Wheat. Rep. 107. 6 Johns. Rep.218. Hig. ginbotham & Al. vs. Fishback. 1 Marsh, (Ky.) Rep.506. 6.Johns. Rep.

lands, or tenements, (where his entry is not congeable,) and

218-5 Cow. Rep. 374. Jackson ex dem. Van Alen, vs. Rogers, 1 Johns. Cas. 37, 47. Jackson ex dem June vs. Raymond Ibid. 86. (in note.) & vide Brown vs. Porter, 10 Mass. Rep. 100.

It has been decided in our Courts, that to constitute a Disseis"in, upon which a descent may be cast, it must be commenced by "wrong, and founded on an ouster of the true owner. There "must be a Disseisin in fact." 5 Cow. Rep. 374. 6 Johns. Rep. 216. 7 Wheat. Rep. 107.

"The Law will never construe a possession tortious unless from "necessity. On the other hand, it will consider every possession "lawful, the commencement and continuance of which, is not pro"ved to be wrongful." Ricard vs. Williams & Al. 7 Wheat. Rep. 107-(per STORY, J. delivering the Opinion of the Court.) Sed vide Den ex dem. Clark vs. Lane, 1 Penn. Rep. 417, Contra, (ut semble.)

There cannot be an actual ouster of a Reversion.-Doe ex dem. Truscott vs. Elliot, 1 Barn, and Ald. Rep. 86.

If A. be tenant of the freehold, and B. tortiously enter upon, and turn the sub-tenant of A. out of possession, claiming the land as his absolute property; and he, or those claiming under him, continue to hold the same, by actual adverse possession, until the death of A., this is an actual disseisin of A.-Davis & Ux vs. Martin. 3 Munf. Rep. 285.

Tenant for life levied a fine, and afterwards devised the premises, and died seised; the Devisee (the Defendant in Ejectment,) entered and continued in possession; and his counsel contended that this case fell within the definitions of a Disseisin which had been referred to from Littleton and Lord Coke. But Lord ELLENBOROUGH, Ch. J. answered him, thus: "All the Definitions in"clude an Ouster of the tenant, a wrongful putting of him out: "and there lies your difficulty: there is an entry of the one party, "but what Ouster or putting out of the other is there ?"-Williams Lessee of Hughes & Ux. vs. Thomas, 12 East's Rep. 141, 152.

In the Case of The Proprietors of the Kennebeck purchase vs. Springer (4 Mass. Rep. 418. 419.) PARSONS, Ch. J. delivering the Opinion of the Court, said: "When a man not claiming any right "or title to the Land shall enter on it, he acquires no seisin, but by "the Ouster of him who was seized, and he is himself a Disseizor. "To constitute an Ouster of him who was seized, the Disseizor "must have the actual exclusive occupation of the Land, claiming "to hold it against him who was seized, or he must actually turn "him out of possession. When a Disseizor claims to be seized by "bis entry and occupation, his seizin cannot extend farther than "his actual exclusive operation; for no farther can the party "seized be considered as ousted for the acts of a wrongdoer

ousteth him which hath the freehold, &c. the comment says,

"must be construed strictly, when he claims a benefit from his own wrong."

"On considering the evidence we are satisfied that the De"mandants were not disseized until 1792, by the entry of the "Tenant that the running round the Land by a Surveyor, and marking the lines, by the direction of one who claims no title to "the Land, is not such an exclusive occupation of the Land as can 'amount to an Ouster or Disseizin of the Demandants. Neither can the occasional cutting of the grass on the meadow by Springer, who does not appear to have claimed the land, amount to (C disseizin."

16

"To constitute a disseizin of the Owner of uncultivated Lands, "by the entry and occupation of a Party not claiming title to the "Land, the occupation must be of that nature and notoriety, that "the Owner may be presumed to know, that there is a possession "of the Land adverse to his title: otherwise a man may be dis"seized without his knowledge, and the Statute of Limitations may run against him, while he has no ground to believe that his "seizin has been interrupted."-& Vide Watrous vs. Southworth, 5 Conn. Rep. 305, 311.

Where one enters upon land under a Deed duly acknowledged and recorded, he acquires a freehold either by right or wrong: if by wrong, it is an actual disseizin of all claiming the land under a different title.-Higbee & Al, vs. Rice. 5 Mass Rep. 344.

An entry on land under a Deed recorded, and payment of taxes, is no evidence of a Disseisin of the true owner, unless the person who entered has continued openly to occupy and improve it.—Little vs. Megquier, 2 Greenl. Rep. 176.

"After a Mortgage, if the Mortgagor remains in possession, it "is not a disseizin of the Mortgagee."-Gould vs. Newman, 6 Mass. Rep. 241 (per PARSONS, Ch. J. delivering the opinion of the Court.)

To constitute a disseisin, the possession of the Disseisor must have been adverse to the title of the true owner, as well as open, notorious, and exclusive.-Little vs. Libby, 2 Greenl. Rep. 242.

Where one had driven piles in the ground which was covered by a Mill pond belonging to another, and had erected and maintained buildings on the said piles for sixty years, the water flowing between the piles, it was held to constitute a Disseizin of the Owner of the Will-pond, and he was barred of his right to the land so occupied.-Boston Mill Corporation vs. Bulfinch, 6 Mass. Rep. 229. If a man enters upon land under a Deed duly registered, though from one having no legal title to the land, and has a visible possession, occupancy, and improvement of only a part of it, such occupation and improvement, unless controlled by other facts, is a