*249The opinion of the Court was afterwards drawn up by
Shepley J.— The report does not fully set forth the conveyance from Ames Foss to Silas Foss and wife. It bears date on the sixth day of November, 1837, and was recorded on the sixth day of August, 1839 ; and it conveys a life estate in the premises on condition, “that if the said Ames render •and deliver unto the said Silas and Sarah, and survivor of them, one third part of all the produce, which may be raised on said farm, for and during the said term annually, or support and maintain the said Silas and Sarah, whichever way they or either of them may elect, on said farm for said term, then the above deed to be void, otherwise to remain in full force.” Ames Foss pleaded a special non-tenure, setting forth, that he had made this conveyance, and so concluded, that he was not tenant of the freehold. This plea and a part of the proceedings at the trial, seem to have been occasioned by an incorrect, construction of this conveyance. Silas Foss seems to have been considered as legally entitled to the aclual possession of the premises. The deed conveys a life estate in mortgage ; and it appears from the condition, that the mortgagor was entitled to the possession until condition broken. He was to deliver one third part of the produce of the farm to them annually, or to maintain and support them upon it. This he could not do without being the actual occupant and receiver of its products. They could not expect to receive one third part of them from the hands of another, while they were receiving in their own right the whole. They could not have intended, nor could they rightfully claim, to occupy and improve the farm without an entry for condition broken. There is no proof of such an entry. Ames Foss must therefore be considered as the actual tenant of the freehold, although his right to the possession was liable to be defeated by a failure to perform the duties required of him. Whether the instructions on this point were strictly correct or not, becomes immaterial; for the plea and defence of non-tenure entirely fail.
The other points in the defence arose out of the alleged right *250of Silas Foss to be considered as acquiring a title to the fee, or to the improvements, by an adverse possession for more than twenty or more than six years. It appears, that he had been in the exclusive possession of the premises long enough to have acquired a title, if that possession can be considered as adverse to the rights of the proprietor. To prove that it was not adverse, testimony was introduced by the demandant, that he made a written contract with Samuel Cony, in the year 1829, in relation to the premises. • That contract has not been copied into the case or made a part of it; and the contents of the paper can only be ascertained from a statement of them in the report. That statement is, that the witness “ testified, that he found a paper among his intestate’s papers, signed by Silas Foss, dated in 1829, in which he promised to pay the taxes on lot No. 1, belonging to Samuel Cony.”
If this be a correct representation of the purport and effect of the paper, it was a written admission, that lot numbered one, on which he lived, belonged to Samuel Cony. This would be a voluntary submission to that title, and a surrender of any rights acquired by any prior possession. And from that time he must be considered as the occupant of the lot in submission to that title, until there be proof of some new act of disseisin. The conveyance to Ames Foss might be so regarded, but it was not recorded and the change in his position made notorious until after the conveyance to the demandant. Whether the paper signed by him amounted virtually to a lease or not, it proved, that he had submitted to the title of the proprietor ; and by his subsequent. possession under such submission, he could not acquire any title to the soil or to the improvements upon it.
Judgment on the verdict.