Eastman, J.
This action was tried at the February term, 1854, of the common pleas, by a gentleman who subsequently left the bench; and after his resignation an amendment of the case, as transferred to us, was made by him in December, 1854, which is probably material. The case, as originally drawn, stated that the court overruled the objections taken to the reception of the pleas, and permitted them-to be filed as the general issue. The amendment made adds that “ the court did this knowing the contents of the pleas, and irrespective of the question whether the pleas were in abatement or in bar.”
If the pleas offered were not the general issue, they could not, under our rules, have been filed, as a matter of right, at the time they were, the. fourth term after the entry of the action, but the court, in its discretion, could receive them at that time. Pleas in abatement, merely, must be filed within the first four days of the term at which the action is entered. Rule 9. And special pleas, generally, within ninety days from the commencement of the term. Rule 7. A plea of non-tenure or disclaimer of the whole or part of [52]*52the land demanded, may be filed after the term at which the action is entered, upon payment of the costs of the suit, up to the time of filing. Rule 18.
These pleas cannot be regarded as the general issue ; nor yet are they formal pleas in abatement, in the most strict and technical sense of the term ; but still they are in the nature of pleas in abatement. Story’s Pld. 382, 383; Wheeler v. Bates, 1 Foster’s Rep. 460; Sperry v. Sperry, 8 N. H. Rep. 477; Wilson v. Webster, 6 N. H. Rep. 419. The pleas not being the general issue, the amendment of the case was material, for it shows that the pleas were received, not as matter of right, but by order of the court, under its discretion. And this discretion the court had the power to exercise. Can the amendment, then, be considered?
In our practice, under the present judiciary system, cases are drawn by the judge holding the common pleas, either at the term, or as soon thereafter as may be. They are considered as drawn at the term, and generally should be ; although there are instances where it would be extremely inconvenient, if not impracticable, either for the court or counsel, to attend to it then. It is the practice, too, for the judge who transferred the case to make amendments of the same at any time before a decisión is pronounced by this court. The amendment is treated as made nunc pro tunc, and no wrong is experienced from this practice, that we are aware of. The object is to get at the truth of the case before it is finally settled.
And it appears to us that no substantial objection exists against the making of this amendment by the judge who tried the cause. He had retired from office, it is true, but the act of making the amendment was no judgment or decision of a court, and no pretence of it, but simply a clerical correction of the history of the case as given by him at the term. This exception must be overruled.
The trial of the cause was finally had upon the issue [53]*53whether the defendants were or not joint tenants of the freehold. This issue was tendered by the plaintiff and joined by the defendants; and upon the trial several questions were raised. The first and principal one, however, and that upon which the others mainly depend, relates to the admission of the defendants’ evidence of title.
It appeared that both parties claimed title derived from John Tappan of East Kingston ; the plaintiff by deed and the defendants by will. Prima facie the better title was in the plaintiff. But that was not the question for the jury ; the issue was whether the defendants were, at the time of the commencement of the suit, joint tenants of the premises ; and as tending to negative that issue on the part of the defendants, they were permitted to introduce the title under which they claimed, which went to show that one of them was owner of part of the premises and another of the remainder. Was this evidence admissible ?
In Bailey v. Carleton, 12 N. H. Rep. 15, Parker, C. J., says that the general rule that where a party having color of title enters into the land conveyed, he is presumed to enter according to his title, and thereby gains a constructive possession of the whole land embraced in his deed, seems to be settled by the current of authorities. And this position is sustained by many authorities, both in our own reports and others. Riley v. Jameson, 3 N. H. Rep. 27; Lund v. Parker, 3 N. H. Rep. 49, and cases cited. The presumption is that he enters and occupies according to his title.
It is true that in the cases alluded to the question did not arise upon issues like the present one ; but, upon reflection, we do not discover any reason why the rule may not be applied to the issue before us. There was no question of title to be settled, and whether the defendants were in as wrongdoers or not, could not arise on the issue. The only point for the consideration of the jury was, how did the defendants occupy the premises; as joint tenants, or otherwise ? and [54]*54as tending to show the character of that occupation the deeds to them of the premises were permitted to be read to the jury.
"Were we to take into consideration the nature of the plaintiff’s and defendants’ titles, the evidence would be inadmissible, for the plaintiff having the better title, the defendants could not qualify their possession as wrong-doers by showing by their deeds that they held in severalty. But that was not the question. The plaintiff tendered the sole issue of possession by the defendants as joint tenants, and that being the only issue, we think the evidence was competent. It had a tendency to show the character and extent of the occupation.
With this view of the evidence, the instructions of the court were well enough, with the exception of the last clause ; but that clause we all think was erroneous. Writs of entry can be maintained only against tenants of the freehold, either by right or by wrong. It was therefore material that the replication should assert that the tenants were in jointly as of freehold. But to maintain the issue it was immaterial what the character of such freehold estate should prove to be. Freehold estates consist either of estates for a life or lives, or for some uncertain period, which may extend for one or more lives ; or estates of inheritance which may be estates in fee-simple absolute, estates in fee-conditional, or estates in fee-tail. All these are estates of freehold; and proof of either of them would be sufficient to maintain the issue on the part of the plaintiff. Besides this, it was wholly immaterial whether on this issue the tenants were joint tenants of the premises by right or by wrong. Disseizors cannot qualify their own wrong by alleging that they have entered claiming a less estate than a fee. But a demandant may show that they have committed a joint disseizin upon him, and are in the joint occupation, claiming a joint interest in the property, by which facts they are made joint tenants in fee, as to him, whatever may be their contracts as to [55]*55the property, among themselves, or whether they have any such contract or not. It was, therefore, sufficient for the demandant to prove that he owned and was entitled to the possession of "the demanded premises, and that the tenants were in the joint possession, claiming the property.
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Eastman, J.
This action was tried at the February term, 1854, of the common pleas, by a gentleman who subsequently left the bench; and after his resignation an amendment of the case, as transferred to us, was made by him in December, 1854, which is probably material. The case, as originally drawn, stated that the court overruled the objections taken to the reception of the pleas, and permitted them-to be filed as the general issue. The amendment made adds that “ the court did this knowing the contents of the pleas, and irrespective of the question whether the pleas were in abatement or in bar.”
If the pleas offered were not the general issue, they could not, under our rules, have been filed, as a matter of right, at the time they were, the. fourth term after the entry of the action, but the court, in its discretion, could receive them at that time. Pleas in abatement, merely, must be filed within the first four days of the term at which the action is entered. Rule 9. And special pleas, generally, within ninety days from the commencement of the term. Rule 7. A plea of non-tenure or disclaimer of the whole or part of [52]*52the land demanded, may be filed after the term at which the action is entered, upon payment of the costs of the suit, up to the time of filing. Rule 18.
These pleas cannot be regarded as the general issue ; nor yet are they formal pleas in abatement, in the most strict and technical sense of the term ; but still they are in the nature of pleas in abatement. Story’s Pld. 382, 383; Wheeler v. Bates, 1 Foster’s Rep. 460; Sperry v. Sperry, 8 N. H. Rep. 477; Wilson v. Webster, 6 N. H. Rep. 419. The pleas not being the general issue, the amendment of the case was material, for it shows that the pleas were received, not as matter of right, but by order of the court, under its discretion. And this discretion the court had the power to exercise. Can the amendment, then, be considered?
In our practice, under the present judiciary system, cases are drawn by the judge holding the common pleas, either at the term, or as soon thereafter as may be. They are considered as drawn at the term, and generally should be ; although there are instances where it would be extremely inconvenient, if not impracticable, either for the court or counsel, to attend to it then. It is the practice, too, for the judge who transferred the case to make amendments of the same at any time before a decisión is pronounced by this court. The amendment is treated as made nunc pro tunc, and no wrong is experienced from this practice, that we are aware of. The object is to get at the truth of the case before it is finally settled.
And it appears to us that no substantial objection exists against the making of this amendment by the judge who tried the cause. He had retired from office, it is true, but the act of making the amendment was no judgment or decision of a court, and no pretence of it, but simply a clerical correction of the history of the case as given by him at the term. This exception must be overruled.
The trial of the cause was finally had upon the issue [53]*53whether the defendants were or not joint tenants of the freehold. This issue was tendered by the plaintiff and joined by the defendants; and upon the trial several questions were raised. The first and principal one, however, and that upon which the others mainly depend, relates to the admission of the defendants’ evidence of title.
It appeared that both parties claimed title derived from John Tappan of East Kingston ; the plaintiff by deed and the defendants by will. Prima facie the better title was in the plaintiff. But that was not the question for the jury ; the issue was whether the defendants were, at the time of the commencement of the suit, joint tenants of the premises ; and as tending to negative that issue on the part of the defendants, they were permitted to introduce the title under which they claimed, which went to show that one of them was owner of part of the premises and another of the remainder. Was this evidence admissible ?
In Bailey v. Carleton, 12 N. H. Rep. 15, Parker, C. J., says that the general rule that where a party having color of title enters into the land conveyed, he is presumed to enter according to his title, and thereby gains a constructive possession of the whole land embraced in his deed, seems to be settled by the current of authorities. And this position is sustained by many authorities, both in our own reports and others. Riley v. Jameson, 3 N. H. Rep. 27; Lund v. Parker, 3 N. H. Rep. 49, and cases cited. The presumption is that he enters and occupies according to his title.
It is true that in the cases alluded to the question did not arise upon issues like the present one ; but, upon reflection, we do not discover any reason why the rule may not be applied to the issue before us. There was no question of title to be settled, and whether the defendants were in as wrongdoers or not, could not arise on the issue. The only point for the consideration of the jury was, how did the defendants occupy the premises; as joint tenants, or otherwise ? and [54]*54as tending to show the character of that occupation the deeds to them of the premises were permitted to be read to the jury.
"Were we to take into consideration the nature of the plaintiff’s and defendants’ titles, the evidence would be inadmissible, for the plaintiff having the better title, the defendants could not qualify their possession as wrong-doers by showing by their deeds that they held in severalty. But that was not the question. The plaintiff tendered the sole issue of possession by the defendants as joint tenants, and that being the only issue, we think the evidence was competent. It had a tendency to show the character and extent of the occupation.
With this view of the evidence, the instructions of the court were well enough, with the exception of the last clause ; but that clause we all think was erroneous. Writs of entry can be maintained only against tenants of the freehold, either by right or by wrong. It was therefore material that the replication should assert that the tenants were in jointly as of freehold. But to maintain the issue it was immaterial what the character of such freehold estate should prove to be. Freehold estates consist either of estates for a life or lives, or for some uncertain period, which may extend for one or more lives ; or estates of inheritance which may be estates in fee-simple absolute, estates in fee-conditional, or estates in fee-tail. All these are estates of freehold; and proof of either of them would be sufficient to maintain the issue on the part of the plaintiff. Besides this, it was wholly immaterial whether on this issue the tenants were joint tenants of the premises by right or by wrong. Disseizors cannot qualify their own wrong by alleging that they have entered claiming a less estate than a fee. But a demandant may show that they have committed a joint disseizin upon him, and are in the joint occupation, claiming a joint interest in the property, by which facts they are made joint tenants in fee, as to him, whatever may be their contracts as to [55]*55the property, among themselves, or whether they have any such contract or not. It was, therefore, sufficient for the demandant to prove that he owned and was entitled to the possession of "the demanded premises, and that the tenants were in the joint possession, claiming the property. He was not bound to show that they were in possession in virtue of any arrangement or agreement that they should occupy for the life of any one; yet this clause of the instructions, as the court understand it, was, in effect, a charge to the jury that their verdict should be for the defendants, unless they should find that the tenants were in possession of the premises, claiming under a common title, or in virtue of an agreement or arrangement among them that the premises were to be occupied ox impxoved by them in common, for their joint benefit, either for the lifetime of their father or of some other person. Whereas the jury were clearly bound to return a verdict for the plaintiff if they found the defendants jointly in possession, without any common title or pretence of title, and without any understanding as to the length of their occupancy. If it had been said a common title by joint disseizin, or by any conveyance to them in fee or for life, it might have answered. But in the limited manner in which it was stated to the jury, it was erroneous ; and although the evidence is not so fully reported as to show conclusively the effect, of the instructions upon the jury, yet it appears to us that the verdict may have turned upon this branch of the instructions. It is very probable that the matter was distinct enough in the mind of the court at the time of the charge, but it does not so appear in the case. As reported to us, this branch of the charge was wrong, and the verdict must consequently be set aside, and a
New trial granted.