But again, here are two persons claiming title to the land. One has the actual, rightful, bona fide title; the other has a spurious title. Neither of them has the actual possession. In whom is the constructive possession? Surely in him who has the rightful bona fide title.
For the reasons here assigned, we think that the court erred in refusing to charge the jury as requested by plaintiff's counsel, and in giving the charge he did to the jury, and on that ground he ought to have granted a new trial.
Kent, Ch. J., delivered the opinion of the court. Two questions arise on this case: 1. Is the lessor, Nichols, entitled to recover upon the deed from R. Lathrop to him? 2. If not, then can Lathrop himself recover in opposition to his deed to Miller, under whom the defendant holds? Unless we can answer one of these questions in the affirmative, judgment must be rendered for the defendant.
1. At the time of the execution of the deed, from Lathrop to Nichols, the defendant was in possession under Miller, who held the land under a deed from another source. The possession was then adverse to the claim or right of Rufus Lathrop, and it is a well settled principle of law, that if a person out of possession conveys to a stranger, land held adversely by another, the conveyance is void, so that the stranger cannot maintain an action upon it. Nothing passes by such a deed; for a right of entry, or a right in action, was not assignable by the common law. This doctrine is by no means a novel one, for it has been so frequently and uniformly acknowledged, both in England and in our own courts, that it has now grown to be familiar, and cannot be open for discussion. Litt. sect. 347. Co. Litt. ibid, and 369a.; Plowd. 88 b.; 2 Sch. & Lef. 65, 105; 2 Caines, 183; Jackson v. Todd, 5 Johns. Rep. 489; Williams v. Jackson.
Indeed this principle was conformable to the whole genius and policy of the common law, by which a tenant could not aliene his fee or tenure, without the consent of his lord, nor the lord his seigniory, without the consent or attornment of his tenant. Wright on Tenures, 166, 171. A feoffment was void without livery of seisin and without possession a man could not make livery of seisin. Perkins, s. 220. Nor was this principle peculiar to the English law. It was a fundamental doctrine of the law of feuds on the continent of Europe. No feud could be created or transferred without investiture, or putting the tenant into possession. Feudum sine investitura nulla modo constitui potest. Investitura proprie dicitur possessio. Feudorum, lib. 1, tit. 25; lib. 2, tit. 2. And Voet says that delivery of possession is still requisite in Holland and Germany, to the transfer of real property. Com. ad Pand., lib. 41, tit. 1, §. 38. It is no doubt the general sense and usage of mankind that the transfer of real property should not be valid, unless the grantor has the capacity, as well as the intention to deliver possession, and actually does it. Blackstone says that it prevails in the codes of "all well-governed nations." for possession is an essential part of the title and dominion over property. 2 Com. 311, 312.
That the possession of Miller was in fact adverse to the right of R. Lathrop, is most clearly made out, because he was in possession under color and claim of title by virtue of a deed from Samuel Lathrop. This amounted to one of the species of disseisins mentioned by Bracton, who says, lib 4, fol. 161 b., that " disseisin may be not only when the owner, or his family or steward are violently ejected, but also when the owner, having gone abroad and left his possession unoccupied, he is denied entry on his return; and so it is if one uses another's land against his will, claiming it to be his own, contendendo tenementum esse suum quod est alterius.''
In the modern case of Doe v. Prosser, Cowp. 217, Lord Mansfield gives a sample of what constitutes an adverse possession. ' If upon demand by the co-tenant of his moiety, the other denies to pay and denies his title, saying he claims the whole, and will not pay, and continues in possession, such possession is adverse and ouster enough." It does not seem to be material, as it concerns the operation of the deed, that the knowledge of the adverse pos-sion should be brought home to the parties, though it might be material, if either of them was prosecuted for the penalty given by the statute against selling pretended titles. In Slyright & Page's Case, 1 Leon, r66, it was considered that the deed might be void, and yet the party not liable to the penalty of the statute. The first question in that ease was, if the lease, being made by one out of possession, and not sealed and delivered upon the land, and so not good in law as to pass any interest.
be within the statute faoresaid ' But in this case the legal inference is that R. Lathrop knew of the adverse possession of Miller when he sold to Nichols, for he must be presumed to be acquainted with his own right; and the presumption is that Nichols purchased under the same knowledge, for Miller had not only a tenant in actual possession, but his deed from S. Lathrop had been recorded several days before, and the lands lay in a county in which deeds, as well as mortgages, are required to be recorded. It is extremely improbable that Nichols purchased, without having previously inspected the state of the title upon record, and inquired into the claims of the actual occupant. He had, at least, constructive notice, or notice in law.
The title set up by the lessor, Nichols, most undoubtedly fails, and the next point is whether the other lessor, R. Lathrop, is entitled to recover.
2. It might possibly be a question whether the acceptance of the deed from R. Lathrop to Miller was not an act of maintenance in Miller, as it was taken after the suit was brought, at least it was so understood upon the argument, and probably with an intent to defend himself with it in that suit. But as R. Lathrop was one of the lessors of the plaintiff, and had the title of the land in himself, it was not very inconsistent with good policy that he should be enabled to sell, and the tenant in possession to purchase, for it was putting an end to the controversy. We mean not, however, to discuss and decide this point in the present case; for, even admitting the sale to have been an act of maintenance, yet the deed was effectual as between the parties to it. Rufus Lathrop cannot recover in opposition to his deed to Miller. It operates to estop him, and it seems to be a principle which runs through the books that a feoffment upon maintenance or champerty is good as between the feoffer and feoffee, and is only void against him who hath right. Bro. tit. Feoffments, pl. 19; Fitzherbert, J., in 27 Hen. VIII., fol. 23 b., 24 a; Co. Litt. 369a.; Cro. Eliz. 445; Beaumond, J., Hawk. b. I. c. 86, § 3. The consequence is, that when the question is upon the demise of Rufus Lathrop, his deed to Miller is an effectual bar to his recovery. The only objection that could have been made to the introduction of this deed at the trial, assuming it to have been given after suit brought and issue joined, was that it ought to have been pleaded puis darrein continuance, so that it might have been returned as parcel of the nisi prius record. This is, no doubt, the general and proper course. Yelv. 180; 2 Rich. Com. Pleas, 13. But it is a sufficient answer to this objection that the deed was admitted in evidence, and went to the jury without opposition. It is, then, to be considered as admitted by consent, and is to have the same effect as if it had been duly pleaded.