at this term delivered the opinion of the Court, as follows,
When an action, local in its nature, is commenced in a wrong county, the defendant is not obliged to plead the fact in abatement. If the objection appear on the record, he may avail himself of it on demurrer ; or if it do not appear on the record, as in the case at bar, he may avail himself of it on trial under the general issue. See the authorities cited in 1 Tidd prac. 369. and 1 Chitty on pleading 269. 270. 284.
The strip of land in controversy adjoins the county line. There had been some doubt whether that line ran the one side or the other of this strip; but, as the line has been known and recognized by the towns and counties, interested in the question, for the last twelve years, the land lies within the county of Kennebec. Now by Stat. 1785. ch. 75. [Revised statutes ch. 114. sec, *2468.] in order “ to prevent an interference of juris diction’’’ the selectmen of adjoining towns are required once in five years to run the lines and renew the boundaries between their towns. In pursuance of the authority, given to them by this statute, and by the special request and direction of the two towns of Pitiston and Dresden, the selectmen of those towns in 1808, after carefully and in good faith investigating the subject, marked and established the present line, as the true boundary of their towns, which is the line of the counties, not by making a new line, where none existed before, but by marking anew a well known old line, believing it, from all the evidence they could obtain, to be the true one. These proceedings were reported to and approved by the two towns ; and the line, thus ascertained and established, has ever since been known and recognized by the adjoining towns and counties, as the line between them. Nay neither the tenant himself nor his counsel thought of questioning that line as the jurisdictional limit, until since the jury returned a verdict against them. But however early the objection had been taken, it could have had no influence on the verdict to be returned by the jury. The proceedings of the two towns, their continual acquiescence, the acquiescence of the two counties, and the consequent exercise of jurisdiction on the part of Pittston and Kennebec, and the forbearing even to claim jurisdiction from that period to the present day on the part of Dresden and Lincoln, are facts conclusive upon the parties, in so far as respects the question of locality. We hold that a local action for the very reason why it is made local, must be brought in that county, which claims and exercises jurisdiction over the place that gives rise to such action ; and, that it is not competent for a defendant, merely with a view to avoid the jurisdiction on the principle that the action is local, to show that de jure the line of the county ought to be established in a different place from that in which it is actually established and known. This principle, it is manifest, does not at all affect the merits of the main question in controversy between the parties. Their lines may or may not coincide with the line of the counties as now known and admitted. This doctrine might be illustrated by reference to well known facts not indeed precisely analogous but sufficiently so for the purpose of illustration. Thus part of the line *247between Massachusetts and Rhode Island, and also between Massachusetts and Connecticut, is still in controversy between those States. Could an individual, sued in ejectment in the Courts of Massachusetts, set up as a defence that, although by the line, as existing defacto the land lay in Massachusetts, and so within the county in which he was sued, yet if the line were run where it ought to be de jure, the land would fall within Rhode Island or Connecticut? See United States v. Hayward, 2 Gal. 486. Such a principle would lead to infinite perplexity, confusion and uncertainty. It would be calling upon private suitors to settle at their own proper charge the line of conflicting jurisdictions; and when perhaps at the expense of much pains and treasure, they had settled it, it would be settled only as between themselves in that particular action.
Nor do we think there is any thing in the other causes assigned which would justify us in setting aside the verdict. It is one of the first principles of the law applicable to real estate that he who is disseised cannot during the continuance of such disseisin convey to a third person. If he attempts to convey nothing passes by the deed. If the supposed grantee enter he is a trespasser, and having gained possession by his own tor-tious act he cannot avail himself of his deed to render his continuance in possession lawful. The defendant’s motion is accordingly overruled and there must be
Judgment on the verdict,