— This is a writ of entry. William H. Hunt, one of the defendants, seasonably pleaded that he was not tenant of the freehold, and disclaimed all right, title and interest in the demanded premises, which disclaimer was accepted by the demandants.
By.R. S., c. 104, § 6, the tenant "may show that he was .not in possession of the premises, when the action was commenced, and disclaim any right, title or interest therein, and proof of such fact shall defeat the action.” It matters not whether the fact of non-tenure is established by the verdict of a jury or by the admission of the demandants. The effect in either case is the same. It operates, unless withdrawn, as an estoppel by record. Greely v. Thomas, 56 Penn., 35. The demandants, in the present case, decline contesting the facts set forth in the tenant’s plea, and admit their truth.
• The suit, then, as against the tenant disclaiming, is defeated. In torts, judgment may be rendered against some of the defendants and in favor of others, when there are many defendants. This is an action of tort. Upon the facts admitted, the tenant disclaiming is entitled to judgment and for his costs as the prevailing party, but this does not affect the right of the demandant to recover against the other defendant.
The title of the demandants is by levy. No exceptions are taken to the proceedings of the officer. Johu C. Knowlton was one of the appraisers chosen, as the return states, by the defendants, the judgment debtors upon whose estate the levy purports to have been made. The tenant offers to show that Knowlton was not chosen by Wm. R. Hunt, in whom he alleges the title to the land levied upon to be. But the return of the officer, as to the choice of appraisers, cannot be contradicted by parol. If false, the remedy of *255tbe party aggrieved is by suit against the officer for a false return. Huntress v. Tiney, 39 Maine, 241.
Judgment for plaintiffs against William R. Hunt.
Costs for William H. Hunt.
Kent, Walton, Barrows and Danforth, JJ., concurred.