delivered the judgment of the Court as follows.
Whatever may be the true construction and effect of the deed of the fourteenth of September 1790, purporting to convey to William Molyneaux, the title of the Twenty Associates to the lands therein described, it does not appear that the said William, in his life time ever had the actual occupation of the premises demanded. Admitting the land in controversy to have been included in, and to have passed by, this deed ; yet it appears that this effect was contested by the grantors. Robert Thorn-dike then in possession under them, continued to occupy the premises, denying and resisting the claim of Molyneaux. ' In this he was supported, as the tenant offered to prove, by the Twenty Associates, who recognized and claimed Thorndike as their tenant; and in February 1806, actually conveyed the land In question to Joseph Pierce in fee, who, by his agent, took possession of the same, which was continued until he sold to the present tenant, who has ever since had the exclusive possession and occupancy of the demanded premises; claiming to hold them as his own. William Molyneaux therefore became disseised, if he ever was in fact seised; and this disseisin must be considered as having commenced soon after the date of his deed. The grantor cannot lawfully enter upon and oust his grantee, but such act would notwithstanding be a disseisin, as much as if committed by a stranger.
It is true that in a comparison of title, if the deed to William Molyneaux passed the premises, the subsequent adverse possession of Robert Thorndike, and of Joseph Pierce and his grantee, would be found to have been tortious. Each deducing his right from the same origin, Molyneaux's, as the more ancient, must have prevailed. But the disseisin, would continue until it was *318purged or extinguished by peaceable entry, or by judgment of law. It does not appear that Molunaaux availed himself of either of these remedies. He died therefore disseised. He in his life time, while the disseisin continued, could not by law have passed his right to a stranger. Could his personal representative do so, upon his decease? If she could not, then however well founded the right of the intestate may have been, the. title of the demandant fails.
It is insisted that under a license of Court duly obtained, the administratrix might lawfully sell the right of the intestate; and that it was competent for the demandant, as the purchaser to enter upon the premises and to demand the same in a suit at law, as he has now done, counting upon his own seisin. The case of Drinkwater v. Drinkwater, 4 Mass. 354. is relied upon as an authority justifying this course. Chief Justice Parsons, in delivering the opinion of the Court there says, “ if the-lands “ are liable to the payment of the intestate’s debts, he (the ad- “ ministrator) may lawfully sell them on license, whether they “ are in the possession of the heir, or of his alienee or disseisor. “ For no seisin of the heir, or of his alienee, or-of his disseisor, “ can defeat the naked authority of the administrator to sell on “ license.” But this reasoning is predicated on the assumption that the intestate died seised. In the case of Willard v. Nason, 5 Mass. 240. the same learned Judge, commenting as the organ of the Court, upon the statute of Massachusetts, under the authority of which the sale was made to the demandant in this action, remarks that “ it may be further observed that the “ lands of a person deceased are not liable for the payment of “ his debts, unless he died seised of them, or had fraudulently “ conveyed them, or was colourably and fraudulently disseised “ of them, with the intent to defraud his creditors.” And this is the language also of the fifth section of the statute of Masses chusetts 1805. ch. 90. and of the revised statutes of this State, ch. 72. sec. 1.
Thus it clearly appears that the lands of a person deceased^ of which he was disseised actually and not colourably, at the time of his death, are not made liable for the payment of his d<bts. The land in question, if it ever belonged to the intesi-it-N being thus circumstanced, it results that the license ob*319iainecl by the administratrix of William Molyneaux did not extend to this land; and that the demandant could derive no title under her deed.
By the deed to William Molyneaux, it is recited that the standing committee of the Twenty Associates, at a meeting holden on the thirty-first of October 1785, agreed to accept the offer of the said William, and to sell to him all the unappropriated lands on Beauchamp Neck; and it is further recited that at another meeting of the same committee, the said William having complied with the conditions on his part to be performed, the committee, referring to their agreement before mentioned, voted that the clerk of the propriety should make out a good and sufficient deed to the said William of the said Beauchamp Neck, according to the usual forms. The tenant offered to prove that at and before the date of that deed, Robert Thorndike was in possession of the demanded premises by distinct metes and bounds, fences and actual improvements, under a contract from the Twenty Associates for the purchase of the same. This contract, and the actual possession of Thorndike under it, must be , considered as an appropriation of this land, within the true intent and meaning of the agreement recited. Of this appropriation neither the Twenty Associates nor William Molyneaux, from the nature of Thorndike’s possession, could be ignorant. It could not have been understood, by either of the parties, that the vote of the committee extendejd to the sale of this land which, if made, would deprive the propriety of the power to fulfil their contract with Thorndike; and thus render themselves liable to answer in damages to him for its violation. To appropriate, is to consign or set apart to a particular use or destination. This was virtually done by the contract with Thorn-dike, who had thereupon entered into the actual possession and enjoyment of the land in question ; his title to which was to become consummate and indefeasible, upon the performance of certain conditions on his part.
But it is contended that the tract conveyed, being bounded on Robert Thorndike’s land, this must be construed to mean the fifty acres which he actually owned, and not that which he had only contracted for; and the case of Crosby v. Parker, 4 Mass. 110, is cited to support this position. Crosby was there *320bounded by Joseph Wilson’s land. Wilson owned one piece and had contracted for, and was in possession of, another adjoining; and the Court held that Crosby’s title extended to the former. One of the reasons assigned by the Court for their opinion is, that Wilson’s first purchase was “ all the land of which he had “ any title on record, by which the tenant could ascertain the “ boundaries.” In the case before us it appears that Thorndike’s deed of the fifty acres, was not recorded until some years after the execution of the deed in question. But the most material difference between the two cases is, that the committee of the Twenty Associates agreed to sell only the unappropriated land. By construing the “ land of Robert Thorndike,” as expressed in the deed, to mean as well that which he occupied and possessed under contract to purchase, as that which had actually been conveyed to him, the unappropriated land alone passed, in conformity with the manifest intention of the parties. But if, by this boundary, we are to understand the fifty acres, it would embrace land which the grantors had before appropriated, by their contract with Thorndike. By the former construction every part of the deed is consistent; and embraces all which the parties could have contemplated.
That the grantee thus understood it, if any further evidence were necessary, the tenant offered to prove that after the execution of the deed, he fraudulently inserted therein after the words “ land of Robert Thorndike’’ the words “ containing fifty acres;” thereby plainly indicating his consciousness that his title could not extend to Thorndike’s fifty acres, without these additional words.
We are, for these reasons, of opinion that the evidence rejected, tending to shew what tvas meant by Robert Thorndike’s land, ought to have been admitted; and upon this ground as well as from the want of authority in Mary Molyneaux to sell this land, for the reasons before stated, the verdict is set aside, and a
New trial granted„