Neither of the lessors of the plaintiff has, then, shown a right to recover. We cannot give effect to the deed to Nichols, because of the adverse possession existing at the time of the sale, and we can. not allow Lathrop to recover, in defiance of his own deed to Miller. To yield to the pretensions of either would be shaking established principles; and though Nichols may, perhaps, have ground to complain of the act of Lathrop in conveying to Miller, instead of lending his name and assistance to recover the possession of the land for him, yet that consideration cannot affect this case. In the action of ejectment, we must look steadily to the legal title. His remedy, if any, must be against Lathrop, for assuming to sell when he was incapacitated to transfer his interest. Nichols cannot interpose in this suit, and prevent the operation of the deed to Miller. As to him, it is res inter alios acta. He must stand upon the strength of his own demise.

The motion to set aside the verdict is, therefore, denied.1

Livingston V. Proseus

2 Hill, 526. - 1842.

Ejectment. - Defendant gave in evidence a lease for life from plaintiff to one Shultis and proved that Shultis was still alive. Plaintiff, under objection and exception, proved that when the life lease was given defendant was in possession of the premises, claiming to hold adversely to plaintiff. Verdict for plaintiff. Motion for new trial.

Bronson, J. - * * * It is extremely well settled, that a conveyance of lands which are at the time held adversely to the grantor, is inoperative and void. It would seem to follow from this doctrine that the title remains in the grantor, and that he may assert it in the same manner as though the deed had not been made. But it is equally well settled, that as between grantor and grantee, and persons standing in legal privity with them, the deed is operative and the title. Jackson v. Demont, 9 John. R. 55; Livingston v. Peru Iron Co., 9 Wend. 516, per Savage, C. J.; Van Hoesen v. Ben-ham, 15 Id. 164. From these two propositions, to wit, that the owner has parted with his title, and that the grantee cannot assert it on account of the adverse holding which avoids the deed, it has been supposed to result as a necessary consequence that the title was extinguished or lost. But it has been denied that any such consequence follows. Jackson v. Brinckerlioff, 3 John. Cas. 101; Jackson v. Vredenburgh, 1 John. R. 159; Williams v. Jackson, 5 Id. 489; Jackson v. Leggett, 7 Wend. 377. Indeed, it may be laid down as a maxim in the law, that a title which once existed must continue to reside somewhere; it cannot be annihilated.

1Seethe N. V. R. P. L., § 225; N. V. Penal Code, §§ 129-131; Code Civ. Proc., § 1501. - Ed.

The whole apparent difficulty arises from an inaccurate statement of the consequence which results from the adverse holding at the time the deed is executed. It is often said in the books, without any qualification, that the deed is void. But that is only true in relation to the person holding adversely, and those who afterwards come in under him. As to all the rest of the world the deed is valid, and passes the title from the grantor to the grantee. This I think, is sufficiently established by the cases already mentioned and the authorities on which they rest. The deed is void as against the party who might otherwise be injured; but it is good as to all others. If the person who held adversely voluntarily abandon the possession, there can be no doubt that the grantee may enter and enjoy the land. Or, if after such abandonment a stranger enter, the grantee may bring ejectment and oust him. The stranger was in no peril of being injured by the conveyance. His entry was tortious, and he shall not cover himself with a shield which belongs to another, between whom and himself there is no legal privity.

But as against the person holding adversely, the deed is utterly void - a mere nullity. There was an attempt to convey, but the parties failed to accomplish the object. The title still remains in the original proprietor, and he may - indeed, must - sue to recover the land. It is true that the recovery will inure to the benefit of the grantee in the deed; but that is a matter between him and the grantor, and with which the person holding adversely has nothing to do. It is enough for him that the deed does him no injury.

When it has been apprehended that a deed might be attacked on the ground of an adverse holding at the time it was made, it has been usual to insert counts in the declaration on the title of the grantor and the grantee, so that if that suit failed as to the one, it might succeed as to the other. Jackson v. Leggett, 7 Wend. 377. But the title is not in both of them, and it is but a poor compliment to the law as a science that it cannot decide which ought to sue. It has, I think, settled the question. When the action is brought against the person holding adversely, or any one who has succeeded to his right, the grantor must sue. But as against a stranger - one who does not stand in legal privity with him who held adversely when the deed was made - the grantee must sue. In cases where the grantor may sue, he must of necessity be allowed to show the deed void when the defendant attempts to set it up to defeat a recovery. Otherwise, the defendant would first defeat the grantor by showing he had conveyed, and then defeat the grantee by showing the deed void; and thus we might come, in effect, to the result of extinguishing a good title.

IV. Title by prescription.

Coolidge V. Learned

8 Pickering, 504. - 1829.

Trespass quare clausum fregit. - Defendant pleaded that the locus in quo had been an open, common, public landing-place from time immemorial. Decision below for defendant. Plaintiff moved for a new trial.

Wilde, J., delivered the opinion of the court. - The plaintiff's counsel except to the direction of the judge, and contend that no usage commencing within the time of legal memory is sufficient to establish a right by prescription; and that it has been long settled that the time of legal memory extends back to the commencement of the reign of Richard I., so that in this country no prescriptive right founded on immemorial usage can be maintained by the principles of the common law.