Woodworth, J.
On the IthNcvcmber, 1803, Petrus Weidman, for the consideration of $500, bargained, sold and quit-claimed to the lessor of the plaintiff, a parcel of land described in such manner as to contain 100 acres. The boundaries are sufficiently definite to admit of accurate location. By the m ap of Rosekrance, a surveyor, marked B, it appears that the defendant is in possession of 23 acres, included in the deed.
It is contended, that this conveyance is inoperative and void. On the 3d March, 1787, Stephen Van Rensselaer, the common source of title, conveyed to Jacob Weidman, the father of Petrus, a farm comprising the premises in question. Jacob Weidman died 14 or 15 years before the trial, which fixes the period of his death about the year 1806. There is no proof that he ever granted or released any part of his farm to Petrus. The only evidence we have on that subject, is derived from thé witness, Petrus, who says, that at the time he executed the deed to the lessor of the plaintiff, he was the owner, and in possession of the farm. This not being competent evidence of title, and the plaintiff having produced no other, Jacob Weidman must be considered as actually seized at that time, and Petrus as having possession merely, claiming title. If so, what passed by this quit-claim deed ? In Co. Litt. s. 346, 265, b. it is laid down, that no right passeth by the release, but the right which the releasor hath at the time of the release made, as if the son release to the disseisor of his father, all the right which he hath or may have, without clause of warranty. After the death of his father, the son ma'y enter against his own release, because he had no right at all at the time of the release made, the right being, at that time, in the father. In the case of McCracken v. Wright, (14 John. 194) this doctrine is recognized. The conveyance, in that case, was like the present—it granted, bargained, sold and quit-claimed all thy [617]*617grantor’s bounty lands for his services during the revolutionary war ; but at the time he had nO title. It was held that no title not then in esse would pass, unless there was a warranty in the deed, in which case it would operate as an estoppel, for avoiding circuity of action. The deed then Conveyed no title to the land. It transferred to the lessor of the plaintiff a possessory title only. On the 13 th February, 1810, Petrus Weidman conveyed to Paul Weidman and the defendant, all the land described in the deed of March 3, 1787, from Stephen Van Rensselaer, excepting 100 acres, stated to have been deeded by Petrus Weidman to Jacob P. Weidman, directly on the east end of the before described premises. At this date Jacob Weidman, the original grantee, was dead. The exception evidently refers to the deed of 1803, and intended that the 100 acres should be located according to its boundaries. To that parcel the defendant acquired no right. It includes 23 acres of land, in the possession of the defendant. This fact, merely, cannot avail the plaintiff; for he must recover by the strength of his own title. The allegation, that Petrus had deeded 100 acres, does not validate-the first deed, but leaves it to its legal operation. It is referred to as matter of description, by which to locate the 100 acres excepted.
The deed of ISth May, 1810, can have no effect upon the present controversy, unless it be considered as a surrender of all the right acquired by the lessor under the first deed. If that is abandoned, by accepting the second deed, then it follows that the plaintiff cannot recover in this action; for although the defendant has no title to the 23 acres sought to be recovered, neither has the plaintiff. On this principle, Petrus Weidman has both the right of possession and title to the 23 acres. But the second deed ought not to be considered as a surrender of the first. As far as it extends, it is consistent with it, for it conveys a part. The evident intention of Petrus Weidman was, that his son Jacob should have 100 acres from the east part of his farm. It is clear, from both deeds, that the east line was not to be governed by the courses and distances in the deed from Stephen Van Rensselaer, but by the line settled between Jacob Weidman, the first [618]*618grantee, and his son,, Jacob Weidman, jun. many years before, and corresponding with the marked trees. This line did not extend so far east as the line in the original deed. In pursuance of this agreement, Thomas Hun made a survey, and subsequently, when Jacob Weidman, jun. obtained a deed, in 1800, his west line extended to the line run by Hun.
The deed of May, 1810, was given under a misapprehension of the rights of the parties. In the first place, it was not competent for Petrus Weidman, after he had conveyed to the defendant, to grant land not included in the exception. The land excepted lies on the nórth side of thé creek, but the second deed conveys to the lessor several acres lying on the south side. If Petrus had a right to convey in this manner, the deed does not include the quantity of 100 acres, beause the east boundary is declared to be the division line between Petrus Weidman and Jacob Weidman,» jun. which must be understood as the line agreed on, according to Hun’s survey. It could not refer - to the east line, in the deed from S. Van Rensselaer to Jacob Weidman, but the line established between them, and by which their possession had been uniformly held. Barber, the surveyor, misapprehended the legal construction of the deed, disregarded the line known and recognized between the parties, and followed the original easterly line, in the deed of 1787, to Jacob Weidman. In this manner, and including the land on the south side of the creek, the deed is said to contain 100 acres. Barber admits, if the east line is governed by the marked trees it will fall short. If the east boundary, as adopted by the parties, had been followedin Barber’s survey, the west line must necessarily have extended farther west, and included some of the land possessed by the defendant. There is no reason to believe that the second deed was given from a belief that the first was not valid, but rather from a desire expressed by the lessor of the plaintiff, to include the land on the south side of the creek. So far, then, as this deed covers the land, which Petrus Weidman had a right to grant, it may be good, but cannot affect any right acquired under the first deed, to such part of the 100 acres as is not comprised in the second. It would be against the manifest intent of the parties, to consider it as a surren-[619]*619der of the possessory right to the 23 acres, because the sec-r . . . , , . .. ond deed, owing to mistake and misapprehension, granted to the lessor a part only of the 100 acres. But the second deed is not in question. At the trial, the plaintiff disavowed holding under it, and admitted he was in possession of all the land contained within the boundaries on the north side of the creek.
The plaintiff’s right will depend on the effect of the first deed. Petrus Weidman, when he released, in 1803, had a possessory title to the whole farm. This possession would enable him to recover, in ejectment, against a subsequent possessor, short of 20 years, without title, on the ground of prior possession.
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Woodworth, J.
On the IthNcvcmber, 1803, Petrus Weidman, for the consideration of $500, bargained, sold and quit-claimed to the lessor of the plaintiff, a parcel of land described in such manner as to contain 100 acres. The boundaries are sufficiently definite to admit of accurate location. By the m ap of Rosekrance, a surveyor, marked B, it appears that the defendant is in possession of 23 acres, included in the deed.
It is contended, that this conveyance is inoperative and void. On the 3d March, 1787, Stephen Van Rensselaer, the common source of title, conveyed to Jacob Weidman, the father of Petrus, a farm comprising the premises in question. Jacob Weidman died 14 or 15 years before the trial, which fixes the period of his death about the year 1806. There is no proof that he ever granted or released any part of his farm to Petrus. The only evidence we have on that subject, is derived from thé witness, Petrus, who says, that at the time he executed the deed to the lessor of the plaintiff, he was the owner, and in possession of the farm. This not being competent evidence of title, and the plaintiff having produced no other, Jacob Weidman must be considered as actually seized at that time, and Petrus as having possession merely, claiming title. If so, what passed by this quit-claim deed ? In Co. Litt. s. 346, 265, b. it is laid down, that no right passeth by the release, but the right which the releasor hath at the time of the release made, as if the son release to the disseisor of his father, all the right which he hath or may have, without clause of warranty. After the death of his father, the son ma'y enter against his own release, because he had no right at all at the time of the release made, the right being, at that time, in the father. In the case of McCracken v. Wright, (14 John. 194) this doctrine is recognized. The conveyance, in that case, was like the present—it granted, bargained, sold and quit-claimed all thy [617]*617grantor’s bounty lands for his services during the revolutionary war ; but at the time he had nO title. It was held that no title not then in esse would pass, unless there was a warranty in the deed, in which case it would operate as an estoppel, for avoiding circuity of action. The deed then Conveyed no title to the land. It transferred to the lessor of the plaintiff a possessory title only. On the 13 th February, 1810, Petrus Weidman conveyed to Paul Weidman and the defendant, all the land described in the deed of March 3, 1787, from Stephen Van Rensselaer, excepting 100 acres, stated to have been deeded by Petrus Weidman to Jacob P. Weidman, directly on the east end of the before described premises. At this date Jacob Weidman, the original grantee, was dead. The exception evidently refers to the deed of 1803, and intended that the 100 acres should be located according to its boundaries. To that parcel the defendant acquired no right. It includes 23 acres of land, in the possession of the defendant. This fact, merely, cannot avail the plaintiff; for he must recover by the strength of his own title. The allegation, that Petrus had deeded 100 acres, does not validate-the first deed, but leaves it to its legal operation. It is referred to as matter of description, by which to locate the 100 acres excepted.
The deed of ISth May, 1810, can have no effect upon the present controversy, unless it be considered as a surrender of all the right acquired by the lessor under the first deed. If that is abandoned, by accepting the second deed, then it follows that the plaintiff cannot recover in this action; for although the defendant has no title to the 23 acres sought to be recovered, neither has the plaintiff. On this principle, Petrus Weidman has both the right of possession and title to the 23 acres. But the second deed ought not to be considered as a surrender of the first. As far as it extends, it is consistent with it, for it conveys a part. The evident intention of Petrus Weidman was, that his son Jacob should have 100 acres from the east part of his farm. It is clear, from both deeds, that the east line was not to be governed by the courses and distances in the deed from Stephen Van Rensselaer, but by the line settled between Jacob Weidman, the first [618]*618grantee, and his son,, Jacob Weidman, jun. many years before, and corresponding with the marked trees. This line did not extend so far east as the line in the original deed. In pursuance of this agreement, Thomas Hun made a survey, and subsequently, when Jacob Weidman, jun. obtained a deed, in 1800, his west line extended to the line run by Hun.
The deed of May, 1810, was given under a misapprehension of the rights of the parties. In the first place, it was not competent for Petrus Weidman, after he had conveyed to the defendant, to grant land not included in the exception. The land excepted lies on the nórth side of thé creek, but the second deed conveys to the lessor several acres lying on the south side. If Petrus had a right to convey in this manner, the deed does not include the quantity of 100 acres, beause the east boundary is declared to be the division line between Petrus Weidman and Jacob Weidman,» jun. which must be understood as the line agreed on, according to Hun’s survey. It could not refer - to the east line, in the deed from S. Van Rensselaer to Jacob Weidman, but the line established between them, and by which their possession had been uniformly held. Barber, the surveyor, misapprehended the legal construction of the deed, disregarded the line known and recognized between the parties, and followed the original easterly line, in the deed of 1787, to Jacob Weidman. In this manner, and including the land on the south side of the creek, the deed is said to contain 100 acres. Barber admits, if the east line is governed by the marked trees it will fall short. If the east boundary, as adopted by the parties, had been followedin Barber’s survey, the west line must necessarily have extended farther west, and included some of the land possessed by the defendant. There is no reason to believe that the second deed was given from a belief that the first was not valid, but rather from a desire expressed by the lessor of the plaintiff, to include the land on the south side of the creek. So far, then, as this deed covers the land, which Petrus Weidman had a right to grant, it may be good, but cannot affect any right acquired under the first deed, to such part of the 100 acres as is not comprised in the second. It would be against the manifest intent of the parties, to consider it as a surren-[619]*619der of the possessory right to the 23 acres, because the sec-r . . . , , . .. ond deed, owing to mistake and misapprehension, granted to the lessor a part only of the 100 acres. But the second deed is not in question. At the trial, the plaintiff disavowed holding under it, and admitted he was in possession of all the land contained within the boundaries on the north side of the creek.
The plaintiff’s right will depend on the effect of the first deed. Petrus Weidman, when he released, in 1803, had a possessory title to the whole farm. This possession would enable him to recover, in ejectment, against a subsequent possessor, short of 20 years, without title, on the ground of prior possession. The defendant’s possession is of that description. It seems, that although the deed of 180-3 included the 23 acres held by the defendant, the plaintiff never actually occupied it. No survey appears to have been made until after, or about the time the defendant purchased. Petrus Weidman may have continued in the occupancy of the 23 acres until he sold to the defendant; and the defendant, very probably, under the impression that the land excepted did not include this parcel, continued the possession. Petrus Weidman?s prior possession, without proving an absolute title, would enable him to recover against the defendant. if he had never given the deed of 1803; but having given that deed, which is valid, so far as to transfer his possessory title, the lessor of the plaintiff may maintain the present action, and recover against the defendant, who, to that extent, is a naked possessor, without pretence of title.
In judgment of law, the lessor of the plaintiff had, from the date of his first deed, possession of the premises in question, under colour of title, until the defendant entered. His possession could not be divested, until an entry was made by some other person claiming adversely.
The lessor’s prior possession is sufficient to recover. That he did not actually occupy and improve the 23 acres will be admitted; it proceeded probably from the cause already adverted to, the want of correct information as to the manner m which it was to be located but this becomes immaterial in [620]*620deciding whether there was not a good constructive possession to this part. If Petrus continued to occupy the 23 acres until he sold to the defendant, the mere fact of occupancy, without a claim of right, would not constitute a hostile possession in opposition to the deed he had given, but a holding for, or under him who had the right.
It is well settled in our Courts, that where A, in possession, conveys a lot or farm to B, the entry of B, and actual possession of part, is a valid possession of the whole lot. In this case the deed is for 100 acres; the plaintiff occupied all but the 23 acres. These facts make out a pri- or legal possession in the plaintiff to the whole, and entitle him to recover the land comprised within the boundaries of the first deed, and in the possession of the defendant.
■ In this view of the cause, it follows, that the title to the land excepted in the deed to the defendant, and not included in the deed of the 13 th May, 1810, to the plaintiff, is still in Petrus Weidman ; but with that the defendant has no concern. The title to the land on the south side of the creek, in possession of the plaintiff, is vested in the defendant.. The land lying between the division line agreed on for the eastern boundary between Jacob Weidman and Jacob Weidman, junior, as run by Mr. Hun, and the east line, as contained in the deed of 1787, from S. V. Rensselaer, has been conveyed by Petrus Weidman to the defendant. The quantity within these limits does not exactly appear ; this parcel, with that on the south side of the creek, will equal or nearly equal the number of acres the plaintiff is entitled to recover.
Whether the defendant can recover against Jacob I. Weidman, the land on the east of the line of marked trees, is not a question necessary to decide in this cause ; it may not, however, be improper, in order to prevent future litigation, to express an opinion, that the line as ran by Mr. Hun, recognized as the true line of division ever since, and possession'taken and I>eld accordingly by the parties, cannot at this late day be disturbed; the defendant’s remedy, if he has any, must be on the covenants in his 4eed from Petrus Weidman.
It was objected at the trial, that Petrus Weidman was not a competent witness: the objection cannot be sustained ; he had no interest to be affected by the plaintiff’s recovery. [621]*621The plaintiff has possession of all the land comprised in the deed of May 13, 1810 ; he claimed nothing under that deed; the witness, therefore, could not be liable on any cov enant contained in it. Whether the plaintiff recovered or failed, that question, as has been shown, turns on the right acquired by the first deed, which was a quit claim merely.
On the whole, I am of opinion that the plaintiff is entitled to judgment.
Sutherlanp, J. concurred.
Savage, Ch. J,
The first point to be settled, relates to the eastern line of the farm originally conveyed to Jacob Weidman. In my opinion, the line of marked trees cannot be disturbed. It was established about 30 years before the trial; and 20 years before the error, if any, was discovered. The owners on both sides occupied, claiming title according to this line, and did so at the date of the deeds of 1803 and 1810. The lessor of the plaintiff certainly could not have recovered in ejectment against Jacob Weidman, junior, at any time since the former became the owner of the 100 acres.
Assuming, then, that the line of marked trees is the eastern boundary of the farm inherited by Petrus Weidman, the plaintiff must recover, whether his deed of 1803 oí 1810 is operative. By these deeds, 100 acres are conveyed; and, by the defendant’s deed, 100 acres on the east end of the farm, conveyed to the lessor of the plaintiff, are reserved. Of course, the lessor’s 100 acres must be first located; and the defendant has the residue. It must be borne in mind, that the lessor of the plaintiff and the defendant both derive title from Petrus Weidman. The defendant’s deed is dated February 13th, 1810; and the reservation is of 100 acres deeded to Jacob P. Weidman. This reservation certainly cannot relate to the deed which was subsequently executed on the 13th May, 1810. We know of no deed to which it could relate, but that of November 7th, 1803, which lo; cates the 100 acres north of the Foxen creek; and the plaintiff must therefore recover 23 acres according to the survey of Rosekrance. I am aware that the acts of the lessor of the [622]*622plaintiff in receiving the last deed, and locating his 100 acre's so as to run south of the creek, seem to negative the idea of the existence, or, at least, the validity of the deed of 1803; but this is not sufficient to oppose to the positive testimony of Petrus Weidman.
The deed of 1803 was a quit claim, and the plaintiff disavowed claiming any thing conveyed by the deed of 1810, which was not previously conveyed by that of 1803. Petrus Weidman was therefore a competent witness. In my opinion, the plaintiff must have his 100 acres west and south of the marked trees, and north of the creek.
Judgment for the plaintiff.