Hosmer, Ch. J.
In the action of disseisin before the court, the plaintiff claims title as being heir to Hezekiah Talcott, deceased ; and the defendants claim to possess the premises demanded, as tenants of the ecclesiastical society in Durham. It is admitted, that at the commencement of the plaintiff’s suit, the defendants were in possession under a claim of right ; and this renders it necessary, only for the plaintiff to show, that he has title to the land in question.
The town of Durham, by the act of its incorporation, in the year 1708, became an ecclesiastical society ; and has remained in existence, as such, to the present time. In 1804, it was re[298] organized under the then existing law ; the legal effect of which, was not the creation of a new society, but the continuation of the old, with a diminution only of the number of the members, which belonged to it. Merwin & al. v. Camp & al. 3 Conn. Rep. 35.
From the motion it appears, that the land demanded was considered as a parsonage lot, as early as the year 1708 ; and that from 1710 to the commencement of the plaintiff’s suit, it has been in the exclusive and uninterrupted possession of the ecclesiastical society before-mentioned, either actually, or by the agents of the corporation. No claim was advanced to the land until the 4th of November, 1762 ; when, as it is now contended, a lease was made of it to the Rev. Mr. Goodrich, and was accepted by the above corporation.
By a statute, passed in 1684, which has continued in existence ever since, it was enacted, that no person or persons should, at any time, make entry into any lands within this state, but within fifteen years next after his or their right or title should first descend or accrue to the same; and in default of such entry, that such person or persons, or their heirs, should he utterly excluded and disenabled from such entry after to be made. By the terms of the act, the right of entry only is barred; but by invariable construction, an adverse possession of fifteen years extinguishes the title of the former owner, and vests a fee-simple estate in the person who has thus possessed. From the exclusive and uninterrupted possession of the ecclesiastical society, in 1708, to the date of the supposed lease, in November, 1762, a period of fifty-four years, it necessarily results, that at the time last-mentioned, their title to the premises Was incontrovertible.
It is claimed by the plaintiff, that Hezekiah Talcott, who had never been in the occupation of the land demanded, nor had any right or title to the same, by deed or record, on the 4th day of November, 1762, made a lease of it, in the following 7 terms ; “I, Hezekiah Talcott, for a valuable consideration to my satisfaction received of the town, do let and release to the Rev. Elizur Goodrich my lot lying in Durham, bounded, &c., for his use and improvement, during my natural life, and for the use and benefit of the ministry, during my successor’s good pleasure” That this was signed by Talcott, is admitted ; and likewise, that it was found in the month of July, 1818, among a number of papers in the desk of Gen. James Wadsworth, of Durham, sometime after his death. It further appears, that [299] from 1755 to 1785, the said Wadsworth was town-clerk of the said town ; and that in the desk before-mentioned, were deeds, and an antient book of records, and other writings, some pertaining to the town-clerk’s office, and others of a different nature ; some of value, and others of no value. When the supposed lease purports to bear date, it is conceded, that the Rev. Mr. Goodrich was the settled minister of the ecclesiastical society of Durham.
At the trial of the cause, there arose, upon the preceding facts, two general questions : First, whether the writing purporting to be a lease, was accepted by the ecclesiastical corporation beforementined ; and secondly, if it was accepted, what were the legal effects and consequences.
1. In respect of the first enquiry, the proof of acceptance is divisible into that which was direct, and that which was presumptive.
There exists no pretence, that any direct proof of acceptance was exhibited. The writing was not made with the knowledge of the ecclesiastical society, or with its assent, by vote, or in any other manner. With the town-clerk it was deposited, for some purpose ; but whether to be delivered to Mr. Goodrich, on the performance of some precedent act, or the entering into some compact, beneficial to Talcott ; or whether it was left with Gen. Wadsworth for the absolute use of the ecclesiastical society, the evidence furnishes no means of determining. The transaction is veiled in so much obscurity, as not to manifest the intention of the supposed lessor. If the writing was delivered, unqualifiedly, for the use of the ecclesiastical corporation, it has not been, and cannot be, pretended, that the town-clerk was the general agent of the corporation, or invested with authority to contract in its behalf. His powers are derived from the statute on this subject ; and this makes him the recording officer of the corporation to enter the votes of the town, and to register deeds, births, marriages and deaths. It results, then, with the most irresistible certainty, that there was no direct evidence proving, or conducing to prove, that the lease was accepted by the ecclesiastical society.
As little ground is there for the assertion, that there is any presumptive evidence to this effect. Reference being had to the place in which the writing was deposited, the manner in which it was kept, and the person who had it in custody, it is an unwarrantable inference, that it was received for the unqualified use of the corporation. If it were not thus delivered by [300] Talcott, it is perfectly irrelevant, what legal presumption would arise, provided such delivery had existed, There must first have been a delivery of the writing for the corporation’s use, before a presumptive assent, on their part, founded as it necessarily must be, on such antecedent fact, can legally be deduced.
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Hosmer, Ch. J.
In the action of disseisin before the court, the plaintiff claims title as being heir to Hezekiah Talcott, deceased ; and the defendants claim to possess the premises demanded, as tenants of the ecclesiastical society in Durham. It is admitted, that at the commencement of the plaintiff’s suit, the defendants were in possession under a claim of right ; and this renders it necessary, only for the plaintiff to show, that he has title to the land in question.
The town of Durham, by the act of its incorporation, in the year 1708, became an ecclesiastical society ; and has remained in existence, as such, to the present time. In 1804, it was re[298] organized under the then existing law ; the legal effect of which, was not the creation of a new society, but the continuation of the old, with a diminution only of the number of the members, which belonged to it. Merwin & al. v. Camp & al. 3 Conn. Rep. 35.
From the motion it appears, that the land demanded was considered as a parsonage lot, as early as the year 1708 ; and that from 1710 to the commencement of the plaintiff’s suit, it has been in the exclusive and uninterrupted possession of the ecclesiastical society before-mentioned, either actually, or by the agents of the corporation. No claim was advanced to the land until the 4th of November, 1762 ; when, as it is now contended, a lease was made of it to the Rev. Mr. Goodrich, and was accepted by the above corporation.
By a statute, passed in 1684, which has continued in existence ever since, it was enacted, that no person or persons should, at any time, make entry into any lands within this state, but within fifteen years next after his or their right or title should first descend or accrue to the same; and in default of such entry, that such person or persons, or their heirs, should he utterly excluded and disenabled from such entry after to be made. By the terms of the act, the right of entry only is barred; but by invariable construction, an adverse possession of fifteen years extinguishes the title of the former owner, and vests a fee-simple estate in the person who has thus possessed. From the exclusive and uninterrupted possession of the ecclesiastical society, in 1708, to the date of the supposed lease, in November, 1762, a period of fifty-four years, it necessarily results, that at the time last-mentioned, their title to the premises Was incontrovertible.
It is claimed by the plaintiff, that Hezekiah Talcott, who had never been in the occupation of the land demanded, nor had any right or title to the same, by deed or record, on the 4th day of November, 1762, made a lease of it, in the following 7 terms ; “I, Hezekiah Talcott, for a valuable consideration to my satisfaction received of the town, do let and release to the Rev. Elizur Goodrich my lot lying in Durham, bounded, &c., for his use and improvement, during my natural life, and for the use and benefit of the ministry, during my successor’s good pleasure” That this was signed by Talcott, is admitted ; and likewise, that it was found in the month of July, 1818, among a number of papers in the desk of Gen. James Wadsworth, of Durham, sometime after his death. It further appears, that [299] from 1755 to 1785, the said Wadsworth was town-clerk of the said town ; and that in the desk before-mentioned, were deeds, and an antient book of records, and other writings, some pertaining to the town-clerk’s office, and others of a different nature ; some of value, and others of no value. When the supposed lease purports to bear date, it is conceded, that the Rev. Mr. Goodrich was the settled minister of the ecclesiastical society of Durham.
At the trial of the cause, there arose, upon the preceding facts, two general questions : First, whether the writing purporting to be a lease, was accepted by the ecclesiastical corporation beforementined ; and secondly, if it was accepted, what were the legal effects and consequences.
1. In respect of the first enquiry, the proof of acceptance is divisible into that which was direct, and that which was presumptive.
There exists no pretence, that any direct proof of acceptance was exhibited. The writing was not made with the knowledge of the ecclesiastical society, or with its assent, by vote, or in any other manner. With the town-clerk it was deposited, for some purpose ; but whether to be delivered to Mr. Goodrich, on the performance of some precedent act, or the entering into some compact, beneficial to Talcott ; or whether it was left with Gen. Wadsworth for the absolute use of the ecclesiastical society, the evidence furnishes no means of determining. The transaction is veiled in so much obscurity, as not to manifest the intention of the supposed lessor. If the writing was delivered, unqualifiedly, for the use of the ecclesiastical corporation, it has not been, and cannot be, pretended, that the town-clerk was the general agent of the corporation, or invested with authority to contract in its behalf. His powers are derived from the statute on this subject ; and this makes him the recording officer of the corporation to enter the votes of the town, and to register deeds, births, marriages and deaths. It results, then, with the most irresistible certainty, that there was no direct evidence proving, or conducing to prove, that the lease was accepted by the ecclesiastical society.
As little ground is there for the assertion, that there is any presumptive evidence to this effect. Reference being had to the place in which the writing was deposited, the manner in which it was kept, and the person who had it in custody, it is an unwarrantable inference, that it was received for the unqualified use of the corporation. If it were not thus delivered by [300] Talcott, it is perfectly irrelevant, what legal presumption would arise, provided such delivery had existed, There must first have been a delivery of the writing for the corporation’s use, before a presumptive assent, on their part, founded as it necessarily must be, on such antecedent fact, can legally be deduced.
Admitting, however, the fact of such delivery, it would not, in my judgment, vary the case, in the minutest degree. It is not a correct assertion, that the acceptance of a lease is presumable, because, on the face of it, it appears to be beneficial to the lessee. On such principle, the title of any person to his property might be weakened, and subjected to doubt, at the election of any one, who should choose to assume the character of lessor. The presumption of assent is not founded on the face of an instrument, but in the nature and circumstances of the entire case; and it is an indispensible enquiry, whether the person claimed to assent derives a benefit from the transaction. Thompson v. Leach, 2 Vent. 198. 206. Mutton's case, 2 Leon. 223. Treadwell & al. v. Bulkley & al. 4 Day 395. Now, upon the facts apparent on the motion, what possible advantage could the ecclesiastical corporation derive from the lease of Talcott ? It was the lease of a man who had no right, by deed, record or possession, and who, therefore, had nothing to convey; and was made to those, who had, by an exclusive and uninterrupted possession of more than half a century, acquired an unquestionable title ; and who, therefore, had nothing to want. From such a lessor an accepted lease might be productive of injury, but could, be of no possible benefit. The judge should have informed the jury, that on the point of acceptance there was no direct or presumptive proof of assent ; or, at least, the principles of law upon the subject should have been stated to them, that they might have been enabled to exercise their jurisdiction in an enlightened manner.
2. If the supposed lease was accepted by the ecclesiastical society, what were its effects and consequences? For the purpose of the present argument, I shall consider the lease as if the society had been the lessee, by name. I am well aware, that the objection to this view of the subject is of great weight; but as my opinion is not varied, by the above supposition, I rather choose to make it, than to enter in to the discussion of an immaterial question.
It is an undoubted consequence arising from the relation of landlord and tenant, that the tenant is estopped from denying [301] the title of his landlord. This is a universal rule, not merely technical, but founded in public convenience and policy. Hodson & ux. v. Sharpe & al. 10 East, 350. Whether the person in possession is tenant at will, at sufferance, or claiming under them, the legal consequence is precisely the same. The person once a tenant, so long as he remains in the occupation of the land demised, must be deemed to continue in that character, unless he has surrendered the possession to his landlord; (Jackson d. Bleecker v. Whilford, 2 Caines 215.) or has solemn ly renounced the tenancy, and commenced a fresh holding ; (Balls v. Westwood, 2 Campb. 11.) or until he shows an actual disseisin or disclaimer on his part. Jackson d. Kane & al. v. Sternbergh, 1 Johns. Cas. 153. 156. In the forcible language of Lord Redesdale, "a person intrusted with the possession of property, shall not betray that possession.” The rule is founded in sound policy, because it tends to encourage honesty and good faith between landlord and tenant ; (Lessee of Galloway v. Ogle, 2 Binney, 468. 472.) and is intended to give the former a security, which, otherwise, would be infinitely endangered. While the protection of landlords is reasonably insured, by the rule before-mentioned, it has never been carried so far in disregard of the rights of the tenant, as to operate an absolute estoppel against his claim of title. The object of it being accomplished, by the tenant’s restoration of the possession to the landlord, or by any fact dissolving the relation between them, the rule above-mentioned is functus officio ; and the former tenant may controvert the title under which he held, without any embarrassment, except so far as a presumption may be derived from his implied recognition of such title. Lessee of Galloway v. Ogle, 2 Binney 468. 471. Jackson d. Anderson v. M’Leod, 12 Johns. Rep. 182. This I consider an undisputed point, and necessarily resulting from the general doctrine of estoppels, to which I shall presently recur. He who denies this principle, must advance another equally repugnant to equity and common sense ; and that is, that a misapprehension relative to the title of a person, if accompanied with the reception of a lease from him, has the operation of a presumption juris et de jure, which may never be rebutted.
The lease from Talcott to Mr. Goodrich expired in the year 1764, on the death of the former. It has not been contended, that an estate at will, after the termination of the estate for life, has been, or could be, created, by the lessor; but it is admitted, that or death of Talcott, there was a termination of [302] the estate arising from the lease. This point, however, is perfectly immaterial; as whether the lessees were tenants at will or at sufferance, the heirs, in either case, had a right of entry on the land demised, 2 Black. Comm.. 146. 150. From the death of Talcott in 1764, to the year’ 1821, at which time the plaintiff's suit was commenced. comprising a period of fifty-seven years, the ecclesiastidal society held the land in question adversely. During more than half a century they claimed their own, and had the sole and undisturbed possession of it, without the payment of rent, or any claim made on the part of Talcott's heirs, either of the land or of the profit. From the premises the jury were authorized to presume a restoration of the land in question to the heirs of talcott, and afterwards an actual ouster of them, by the ecclesiastical society; and to this effect they should have been instructed.
I am not acquaited with any decision which contradicts the principle assumed.
The case that comes nearest to it, is that of Lisle v. Harding, determined in the Common Pleas, as far back as the year 1727. Bull. N. P. 104. It was said by the court, in this case, "If a cottage were built at first, by permission of the lord of a manor, or any acknowledgment of his title has since been made, (though it were an hundred years since,) the Stat. of Jac. 1. c. 18. will not run against him ; for the passession of a tenant at will, for ever so many year, is no disseisin ; there must be a tortious ouster." I am inclined to think the court intended merely to assert this principle; that the possession of a person, in the character of a tenant at will, for any assignable lapse of time, constitutes no disseisin; and the reasoning of Lord Mansfield, in Doe d. Fishar & al. v. Prosser, Cowp. 217. confirms the opinion. Undoubtedly, to enable the statute of limitations to ran, there must be an actual disseisin ; but the perception of the rents and profits of land, without accounting for, to any one, is evidence of an ouster. In Story v. Lord Windsor & al. 2 Atk. 630. it was said, by Lord Hardwicke, that "in the case of a fine and non-claim, by one tenant in common, it will bar his companion, or him who claims a share, if he does not call the person buying to an account of the profits ; for this has always been admitted to be evidence of an actual ouster.”
In the case of Doe d. Fishar & al. v. Prosser, before alluded to, (which, on this subject, may be deemed a leading case) it was determined, that thirty-six years’ sole and uninterrupted
[303] possession, by one tenant in common, without any account to, or demand made, or claim set up, by his companion, is a sufficient ground for a jury to presume an actual ouster of the co-tenant. In delivering his opinion, it was said, by Lord Mansfield : “It is very true, I told the Jury, they were warranted, by length of time, in this case, to presume an adverse possession and ouster, by one of the tenants in common, of his companion ; and I continue still of the same opinion. Some ambiguity seems to have arisen from the term actual ouster, as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in, by a rightful possession, and yet hold over adversely, without title. If he does, such holding over, under [any] circumstances, will be equivalent to an actual ouster. In the case of tenants in common, the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion ; because such possession is not adverse to the right of his companion, but in support of their common title; and by paying him his share, he acknowledges him co-tenant. Nor, indeed, is a refusal to pay, of itself, sufficient, without denying his title. But 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. The question, then, is, whether the possession in this case, after the death of Stevens, in the year 1734, that is, after the particular estate ended, was a possession as tenant in common eo nomine, or adverse? It is a possession of near forty years, which is more than quadruple the time given by the statute for tenants in common to bring their action of account, if they think proper. But, in this case, no evidence whatever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of the title in them, or in those vender whom they would now set up a right. Therefore, I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession, for such a length of lime, is a sufficient ground for the jury to presume an actual ouster, and that they did right in so doing.” In the same case, it was said, by Justice Aston: "What is adverse possession or ouster, if the uninterrupted receipt of the rents and profits without account, for near forty years, is not?” And by Justice Ashhurst: “After so long an acquaintance, I think the jury were well warranted to presume any thing in support of the defendant’s title ; and [304] they might presume either an actual ouster, or r conveyance," To a determination equally luminous and forcible, I shall subjoin no observations.
The analogy between the above case and the one in question, is so direct, and the principle recognized so entirely applicable to both, that I shall not waste time, by any remarks on these subjects. From the premises it is indisputable, that the Judge should have told the jury, that they were warranted, from the length of possession, by the ecclesiastical society, without any claim made upon them, to presume an actual ouster of the heirs of Talcott.
It remains to enquire, if the plaintiff was actually ousted, by the corporation, and the relation of landlord and tenant was dissolved, what legal consequences result from the facts apparent on the motion.
The first consequence has, in some measure, been anticipated. The title, which the ecclesiastical corporation was invested with, at the date of the lease, remains in full force, except so far as it may be shaken, by the presumption resulting from the acceptance of that instrument. If a lease for life or years, is made, by deed poll, of lands wherein the lessor has nothing ; this does not estop the lessee from averring, that the lessor had nothing in the lands at the date of the lease ; and the same law is applicable to an indenture, which is the deed of both parties, with this difference only, that in the latter case, the estoppel operates until the determination of the estate. Co. Litt. 47. b. Shep. Touch. 53. 4 Com. Dig. 78. 4 Bac. Ab. 189. 190.
Upon the facts apparent on the motion, the relation of landlord and tenant having ceased, the ecclesiastical corporation have an indisputable title to the demanded premises.
The next consequence is, that the actual ouster being carried back to the period immediately subsequent to Talcott’s death, in 1784, which, for aught I can perceive, is inevitable on the facts appearing, the ecclesiastical society have acquired title, if it did not before exist, by an adverse possession of more than fifteen years.
I am of opinion that there ought to be a new trial.
Peters, Brainard and Bristol, Js. were of the same opinion.
New trial to be granted.