Tilton v. Emery

Gilchrist, J. The statute of June 19, 1805, N. H. Laws 74, provides that no person shall make entry into any land, or maintain any action for the recovery or obtaining possession thereof, unless such person has been seized or possessed thereof within twenty years next preceding the making such entry or commencement of such suit. Upon the trial of this action the issue was, whether or not the defendants, or those under whom they claimed, had been seized or possessed within that period; and it was found that they had not, and it was undoubtedly so found upon good and sufficient evidence, unless the exceptions raised and presented in the case show the contrary. One of these is, that the plaintiff himself had conveyed to the defendant’s ancestor, and therefore could not have disseized him. But this conclusion* does not seem to be a necessary one. His deed estops him to set up a paramount title, without doubt; but he may as well commit disseizin upon land that he has conveyed as upon any [539] other. Had he, within one year from the commencement of the supposed wrongful possession, been sued by the disseizee in an action for the recovery of it, he could not have maintained an issue upon a plea of non-tenure or disclaimer. The defendants claim under John T. Gilman. Whatever he said, therefore, after the supposed title accrued to him, and before he transmitted it to them, was evidence, provided it would be evidence in case he himself were alive and maintaining this defence instead of themselves. The question is, were the defendants, or was Gilman seized of the premises at any time within twenty years ? If he said that he had no claim, it was evidence that he was not seized; because seizin is some claim, and his admissions are evidence. We see nothing in the peculiar nature of the conversation proved that should deprive the plaintiff of the benefit of it under the general rule that entitles him to prove the admissions of the opposite party. As to the other exception the evidence is quite clear that the possession of Samuel Tilton was subordinate to the plaintiff, and was therefore his possession; or, perhaps, if he was the mere agent, the possession of the plaintiff was preserved, more properly speaking, by the tenant whom he placed there, through the mediation and agency of Samuel. These exceptions cannot prevail, and there must be Judgment on the ver diet