The alleged disseizin in this case was evidently a formal act, done with a view to the legal proceeding by which a fine was levied. It was however a case where the party promoting the proceeding had a bona fide pretence of right. Egerton L. Winthrop, by whom and for whose benefit it was taken, had a paper title under which he claimed to own the premises, and he and those under whom he claimed had paid the taxes and assessments charged upon the premises for at least ten years before the passing of the fine. The documentary evidence relating to *Page 171 the fine is admitted to be strictly formal and legal, and it was proved that shortly before the papers bear date, Winthrop caused the premises to be inclosed with a substantial board fence. Before the execution of the principal papers Mr. Winthrop and Mr. H.H. Jones, who was the cognizor in the proceeding, went upon the land so inclosed, and the former delivered to the latter a parcel of the earth in the name of livery of seizin. A deed of feoffment from Winthrop to Jones was at the same time executed and delivered. The subsequent proceedings, including the non-claim of the plaintiffs are conceded to be sufficient to vest the title in Winthrop and to bar the plaintiffs, provided the inclosing the premises and the feoffment, with livery to Jones was a sufficient disseizin to vest in the latter what is called an estate of freehold by wrong. Preston, who is considered a very accurate writer upon this subject, says in his Treatise on Conveyancing (p. 225): "So, if a person enter claiming the freehold, or enters on a vacant possession, claiming the freehold and thus acquires the freehold or enters under a void conveyance purporting to pass the freehold, either by abatement, intrusion or disseizin, in all these cases the fine levied by that person after his entry will be a good foundation for the commencement of the title by non-claim." But he adds, "A mere instantaneous seizin will not suffice," for which latter remark he citesTownsend v. Ash (3 Atk., 336).
The effect of a fine came before Lord HARDWICKE, in the case cited from Atkyns. He assumed that an entry on the land by a wrong doer claiming title would enable him to levy a fine, but he says he must continue in possession, for, he remarks, "a wrong doer to gain a possession by disseizin must not step on the land, and withdraw and leave the rightful owner in possession, which would be sufficient to give a seizin on a feoffment but not to levy a fine." See also Doe v. Spencer (11 East, 495), where the entry of a sheriff's officer under a writ of possession was held sufficient *Page 172 to enable the party on whose behalf he acted to levy a fine on the same day on which the entry took place, it appearing that the party had afterwards received rent, thus showing that he continued in possession.
That the case before us was not one of an instantaneous entry, where the premises were afterwards left in the possession of parties claiming adversely to Winthrop, or were even left vacant, is obvious from the fact that they were leased for three years by Winthrop to Stivers in 1828, the year following that on which the fine was levied. In 1830, they were leased to the same person for twenty-one years, and it was admitted that Winthrop and those claiming under him had received the rent under these leases from the commencement of the first of them. A mere wrongful entry upon a vacant possession is not a disseizin which will enable the wrong doer to levy a fine. There must be an act equivalent to an actual ouster or expulsion of the first owner. The execution of a common law conveyance with livery of seizin is regarded as such an act. (Varick v. Jackson, 2 Wend., 166, 203.)
I am of opinion, therfore, that this fine and non-claim has the effect attributed to fines by the statute, to wit, "that it concludeth not only such as be parties and privies thereto and their heirs, but all other people of the world, being of full age, c., if they make not their entry and bring their action within five years after the fine levied." (1 R.L., 1813, p. 358, § 1.) The judge charged the jury that the facts proved, including the fact of inclosure, would establish the validity of the fine and entitle the defendants to a verdict. This was correct, upon the principles which I have mentioned. But he was asked by the plaintiffs' counsel to charge that if the premises had remained vacant until Winthrop was about to begin proceedings to levy the fine, and he had then inclosed the same in order to levy the fine, he had not such an estate as would authorize him to levy it. The judge declined so to charge and the plaintiffs' counsel excepted. *Page 173 The request was suggested by the testimony of one of the witnesses, who stated that the inclosure was made by Mr. Winthrop, under the legal direction of Mr. Jay, the counsel under whose advice the fine was levied, who wished Winthrop to inclose the lots to comply with the common law requisition to enable a fine to be levied. I do not think this qualified injuriously the effect of the inclosure and the taking of actual possession. The property had up to that time lain vacant, and Winthrop, claiming to be the owner, wished to do an act which would establish his title and cut off any outstanding claim which might exist. This, we have seen, the law, as it then stood, would allow him to do; but it required the formality of entry upon the vacant possession by a notorious act, and the continuance of such possession. This was done by his construction of the fence and making a feoffment with livery. The acts were none the less valid, from having been done under the advice of counsel.
The judgment should be affirmed.
PRATT, J., dissented; COMSTOCK and SELDEN, Js., expressed no opinion.
Judgment affirmed.