Barker, J.
The tenants excepted to the refusal to give certain instructions, to the rulings given, and also to the proceedings by which the verdict first signed was amended in open court and received and recorded. The whole charge is stated, but the exception to the rulings given must be construed to be to those only which were contrary to the requests. At the hearing the exceptions to the refusal to give the requests numbered 2, 3, 4, 5, 8, 9, 12, and 15 were waived.
1. The first, sixth, and seventh requests were upon the theory that an actual wrongful dispossession or exclusion of the demand-ant, or an adverse possession by the tenants, must be shown to maintain the action. But under our statutes the demandant declaring on his own seisin alleges a disseisin, and is required to prove only that he is entitled to such an estate as he claims, and that he has a right of entry. The suit is prosecuted and conducted as if the demandant had made an actual entry and had been immediately ousted, and if he proves his estate and right [93]*93of entry he recovers, unless the tenant proves a better title in himself. Pub. Sts. c. 173, §§ 1-4. It is true that, as provided in § 6 of the same chapter, a person in possession who has actually ousted the demandant, or has withheld possession from him, may be considered', at the election of the demandant, as a disseisor, although he claims an estate less than a freehold; and that one of the defences in the case at bar was an allegation that the demandant had bargained the locus to the tenants, and had agreed to convey the title to them, and had put them in possession as part of the bargain, and had broken his agreement and refused to fulfil it, and had never since regained possession.
But there was a further joint answer of title in one of the tenants under a tax deed, and each of these three requests was incorrect when applied to some aspect of the case, and so could not properly be given. Upon the question whether the tax deed was a better title than that shown by the demandant, it would have been incorrect to rule that an actual wrongful dispossession or exclusion of the demandant, or an adverse possession by the tenants, must be shown to entitle the demandant to recover.
2. As to the tenth request,
3. The thirteenth request, that, if the demandant was entitled to recover as against the tax title, he could only so recover against one of the tenants, was in effect a request to rule that the demandant could not recover against the other tenant, and was properly refused. If the tax title had been the only issue, and John S. Linnehan had disclaimed, the instruction might [94]*94have been correct; but in the actual posture of the case the demandant could recover against both tenants, although only one of them was a grantee under the tax title.
4. The fourteenth request may be considered in connection with the exception to the rulings given. As before stated, one of the defences alleged was, in substance, that the demandant had bargained the locus to the tenants and promised them a deed upon considerations to be performed by them, and as a part of his bargain had placed them in possession ; that they had either performed their part of the agreement or had been prevented or excused by the demandant from performing it, and that he had broken his part of the agreement, and that they were yet in possession and had the right of possession under their agreement to purchase. The fourteenth request was, in effect, that these alleged facts would entitle the tenants to be relieved, under St. 1883, c. 223, § 14, against the demandant’s cause of action. This is the provision that in actions at law the defendant may “ allege as a defence any facts that would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action, or against a judgment obtained by the plaintiff in such action.” The tenants were not harmed by the refusal to give this instruction. The jury were told that, if there was such an agreement, and the tenants had performed or offered to perform it and had been prevented or excused from performing it, then the demandant would not be entitled to possession, and that he was not entitled to recover unless he was entitled to possession. If correct as a statement of law, it would have been of no advantage to the tenants to state that facts which were a legal defence were also a defence under the statute cited.
The instructions were correct, and sufficient to enable the jury to deal with all the aspects of the case. The tenants could not set up a tax sale which was suffered or procured by them to enforce a tax which they had agreed that they would pay. In other words, the demandant was entitled to avail himself, in answer to the defence of the tax sale, of the fact that that sale was suffered or procured contrary to an express agreement with him that the tenants would pay the tax, because that fact would entitle him to be absolutely and unconditionally relieved in equity against [95]*95that defence. See St. 1883, c. 223, § 14. Assuming that the tax was duly levied, and the sale properly made, so that an absolute title under it was in the purchaser, the fraud of the tenants in suffering or procuring the sale entitled the demandant to be absolutely and unconditionally relieved against it as a defence against his writ of entry.
5. There was no error in allowing the jury, without again retiring, to amend the written verdict first signed and handed to the court, or in receiving and recording the verdict so amended. The inquiry of the court was naturally suggested by the written answer submitted with the verdict, which answer was inconsistent with the verdict as first written and signed by the foreman. Two printed forms had been given to the jury, differing only in this, that in one was the word “ not.” The fact that by mistake the foreman had signed the wrong form, which did not express the verdict upon which the jury had agreed, was made certain by an inquiry not calculated to influence the reply, and an answer which called for no consultation; and when that fact was ascertained the correction of the error was merely a clerical matter. It was proper for the presiding justice to ascertain whether the jury desired to have the correction made, because, even if there had been no mistake, each juror had the right to withdraw his assent to the verdict until it had been received and recorded. But this was a matter for individual action rather than for joint deliberation, and the court might allow the jury to correct the mistake without retiring and consulting by themselves. There was no room for the supposition that they had conducted their deliberations and arrived at their verdict under a misapprehension of the law. They were not called upon to make a verdict which they had not before arrived at or agreed upon. The only question was whether the written verdict was their true verdict, or a clerically erroneous expression of it. The case is not governed by Kenney v. Habich, 137 Mass.
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Barker, J.
The tenants excepted to the refusal to give certain instructions, to the rulings given, and also to the proceedings by which the verdict first signed was amended in open court and received and recorded. The whole charge is stated, but the exception to the rulings given must be construed to be to those only which were contrary to the requests. At the hearing the exceptions to the refusal to give the requests numbered 2, 3, 4, 5, 8, 9, 12, and 15 were waived.
1. The first, sixth, and seventh requests were upon the theory that an actual wrongful dispossession or exclusion of the demand-ant, or an adverse possession by the tenants, must be shown to maintain the action. But under our statutes the demandant declaring on his own seisin alleges a disseisin, and is required to prove only that he is entitled to such an estate as he claims, and that he has a right of entry. The suit is prosecuted and conducted as if the demandant had made an actual entry and had been immediately ousted, and if he proves his estate and right [93]*93of entry he recovers, unless the tenant proves a better title in himself. Pub. Sts. c. 173, §§ 1-4. It is true that, as provided in § 6 of the same chapter, a person in possession who has actually ousted the demandant, or has withheld possession from him, may be considered', at the election of the demandant, as a disseisor, although he claims an estate less than a freehold; and that one of the defences in the case at bar was an allegation that the demandant had bargained the locus to the tenants, and had agreed to convey the title to them, and had put them in possession as part of the bargain, and had broken his agreement and refused to fulfil it, and had never since regained possession.
But there was a further joint answer of title in one of the tenants under a tax deed, and each of these three requests was incorrect when applied to some aspect of the case, and so could not properly be given. Upon the question whether the tax deed was a better title than that shown by the demandant, it would have been incorrect to rule that an actual wrongful dispossession or exclusion of the demandant, or an adverse possession by the tenants, must be shown to entitle the demandant to recover.
2. As to the tenth request,
3. The thirteenth request, that, if the demandant was entitled to recover as against the tax title, he could only so recover against one of the tenants, was in effect a request to rule that the demandant could not recover against the other tenant, and was properly refused. If the tax title had been the only issue, and John S. Linnehan had disclaimed, the instruction might [94]*94have been correct; but in the actual posture of the case the demandant could recover against both tenants, although only one of them was a grantee under the tax title.
4. The fourteenth request may be considered in connection with the exception to the rulings given. As before stated, one of the defences alleged was, in substance, that the demandant had bargained the locus to the tenants and promised them a deed upon considerations to be performed by them, and as a part of his bargain had placed them in possession ; that they had either performed their part of the agreement or had been prevented or excused by the demandant from performing it, and that he had broken his part of the agreement, and that they were yet in possession and had the right of possession under their agreement to purchase. The fourteenth request was, in effect, that these alleged facts would entitle the tenants to be relieved, under St. 1883, c. 223, § 14, against the demandant’s cause of action. This is the provision that in actions at law the defendant may “ allege as a defence any facts that would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action, or against a judgment obtained by the plaintiff in such action.” The tenants were not harmed by the refusal to give this instruction. The jury were told that, if there was such an agreement, and the tenants had performed or offered to perform it and had been prevented or excused from performing it, then the demandant would not be entitled to possession, and that he was not entitled to recover unless he was entitled to possession. If correct as a statement of law, it would have been of no advantage to the tenants to state that facts which were a legal defence were also a defence under the statute cited.
The instructions were correct, and sufficient to enable the jury to deal with all the aspects of the case. The tenants could not set up a tax sale which was suffered or procured by them to enforce a tax which they had agreed that they would pay. In other words, the demandant was entitled to avail himself, in answer to the defence of the tax sale, of the fact that that sale was suffered or procured contrary to an express agreement with him that the tenants would pay the tax, because that fact would entitle him to be absolutely and unconditionally relieved in equity against [95]*95that defence. See St. 1883, c. 223, § 14. Assuming that the tax was duly levied, and the sale properly made, so that an absolute title under it was in the purchaser, the fraud of the tenants in suffering or procuring the sale entitled the demandant to be absolutely and unconditionally relieved against it as a defence against his writ of entry.
5. There was no error in allowing the jury, without again retiring, to amend the written verdict first signed and handed to the court, or in receiving and recording the verdict so amended. The inquiry of the court was naturally suggested by the written answer submitted with the verdict, which answer was inconsistent with the verdict as first written and signed by the foreman. Two printed forms had been given to the jury, differing only in this, that in one was the word “ not.” The fact that by mistake the foreman had signed the wrong form, which did not express the verdict upon which the jury had agreed, was made certain by an inquiry not calculated to influence the reply, and an answer which called for no consultation; and when that fact was ascertained the correction of the error was merely a clerical matter. It was proper for the presiding justice to ascertain whether the jury desired to have the correction made, because, even if there had been no mistake, each juror had the right to withdraw his assent to the verdict until it had been received and recorded. But this was a matter for individual action rather than for joint deliberation, and the court might allow the jury to correct the mistake without retiring and consulting by themselves. There was no room for the supposition that they had conducted their deliberations and arrived at their verdict under a misapprehension of the law. They were not called upon to make a verdict which they had not before arrived at or agreed upon. The only question was whether the written verdict was their true verdict, or a clerically erroneous expression of it. The case is not governed by Kenney v. Habich, 137 Mass. 421; and, in accordance with those cases which hold that palpable errors in the written verdict may be amended when the verdict is returned into court, the course taken was correct. See Spencer v. Williams, 160 Mass. 17, and cases cited; Winslow v. Draper, 8 Pick. 170; Lawrence v. Stearns, 11 Pick. 501. No doubt the verdict as amended and recorded differed totally in legal effect [96]*96from that first signed by the foreman. But the verdict as amended and recorded was the verdict agreed upon, and which but for the error would have been signed. The jury made no change in their verdict, but corrected a wrong statement of it. The}r already had agreed that the tenants did disseise the demandant, and merely corrected a clerical error. In Capen v. Stoughton, 16 Gray, 364, where a sheriff’s jury, by a mistake like that made in the case at bar, signed and returned a verdict for the respondents when they in fact had agreed upon and intended to return a verdict for the petitioners, the court speak of the mistake as a clerical error, saying: “ The error consisted, not in making up their verdict on wrong principles or on a mistake of facts, but in an omission to state correctly in writing the verdict to which they had, by a due and regular course of proceeding, honestly and fairly arrived.” The correction of such errors by the unanimous assent of the jury in open court is, in our opinion, correct upon principle, and is not forbidden by the precedents cited. Exceptions overruled.
These requests for instructions were as follows:
“ 10. The sale for non-payment of the taxes does not affect the rights of the tenants that they have under the original contract to purchase, under all the facts in this case.
“ 11. Under the facts in this case, there is a sufficient memorandum, under the statutes, to bind the demandant to the original contract of purchase.”