In trespass qu. cl., tenants in common should join as plaintiffs. The action is for an injury to the possession, and the possession is joint. 1 Ch. Pl. 52; 4 Kent Com. 368; Campbell v. Wallace, 12 N.H. 370; Webber v. Merrill, 34 N.H. 202, 208.
By the unquestioned conveyances to the plaintiffs of twenty-eight and one third sixtieths of the town in 1863, they became seized of fifty-six and two thirds lots which had been allotted, and twenty-eight and one third undivided sixtieths of the part which had not been allotted. The defendant takes under a deed from Green, whose title is derived from his levy in 1854 on three original rights; and as Green entered into possession at the time of the levy, he and his grantee are presumed to have remained in possession since, nothing appearing to the contrary, according to the maxim that a state of things being shown to exist is presumed to continue until evidence to the contrary is shown. 1 Gr. Ev., s. 41; Cobleigh v. Young, 15 N.H. 493,502; Prop. of Kennebeck Purchase v. Springer, 4 Mass. 417. Their possession for more than twenty years gave the defendant a title by adverse possession to three undivided sixtieth parts, unless it was interrupted by the entry of the plaintiffs *Page 249 in 1863; and the plaintiffs and defendant would be tenants in common of the unallotted part of Kilkenny, the plaintiffs owning twenty-eight and one third sixtieths and the defendant three sixtieths.
If it be assumed that the conveyances to the plaintiffs of nine and two thirds shares in 1863 gave them good titles to so much of the township, they would then be the owners of seventy-six lots and thirty-eight sixtieths of the undivided land. This is all their deeds covered, and their possession is presumed to be according to their title. But being in possession of thirty-eight sixtieths of the undivided land, they undertook to convey and reconvey to each other the whole tract, and under color of such conveyances they claim title to the whole tract. These conveyances among themselves could only operate to define the extent of their possession. One who enters upon land without title is deemed to have possession of so much only as he actually occupies — possessio pedis; but when he enters under color of title, he is presumed to occupy constructively according to the boundaries named in his deed. But in either case he acquires no title to the land as against one having a better title, until he has occupied adversely for twenty years. The conveyances of the plaintiffs among themselves gave them no title to land which they did not previously own, as against one having title to it. They owned only thirty-eight sixtieths, and their deeds to each other could not convey the twenty-two sixtieths which they did not own, as against any one who had a better title to twenty-two sixtieths, or to any part thereof. The defendant's grantor had been in possession of three sixtieths since 1854. Green's possession of three sixtieths was prior to the plaintiffs' possession of twenty-two sixtieths by nine years. When they entered in 1863, claiming the whole, they did not turn the defendant out. Neither party has evicted the other. The plaintiffs and the defendant are therefore tenants in common; and a tenant in common cannot maintain trespass qu. cl. against his co-tenant without an eviction and ouster. Odiorne v. Lyford,9 N.H. 502, 511; Daniels v. Brown, 34 N.H. 454; Kenniston v. Leighton,43 N.H. 309, 312; Wood v. Griffin, 46 N.H. 230, 237. The defendant is entitled to
Judgment on the report.
STANLEY, J., did not sit: the others concurred.