In an action of trespass quare clausum, the plaintiff introduced evidence tending to show that he was in actual possession of the locus for the purpose of cutting and taking away the grass growing thereon, under a license from the widow of a former owner. The defendant offered in evidence a number of deeds from the deceased husband of the licensor of portions of the locus described in the writ; the same being objected to, defendant’s counsel in answer to an inquiry by the court as to the purpose for which these deeds were offered, replied: “The purpose is to show that the title to a large portion of the land described in the writ is in some one other than the plaintiff or the plaintiff’s grantor.” Later he stated that they were offered not only to show that the title was in some other person or the licensor, but also that the plaintiff had no right of possession, and stated other purposes for which they were offered. It was not claimed that the title to any of the lots conveyed by these deeds had ever come by mesne conveyances to the defendant, or that he had any right, title, possession or right to the possession of any portion of the locus, under these deeds, or that the acts complained of as trespasses were done under the license or permission of any person who owned any portion of the locus under these deeds. The deeds were admitted in evidence subject to the plaintiff’s objection and exception, and .the trial resulted in a verdict for the defendant.
It is undoubtedly true that this form of action is to recover for injuries done to the plaintiff’s possession. Title is not necessarily involved, and it is not necessary for the plaintiff to prove title to the locus provided he shows that he was in actual, and, so far as the defendant is concerned, lawful possession thereof at the time of the trespasses complained of.
But it does not follow that the admission of deeds of the locus, or of any part of it, from the plaintiff, or from a person under whom lie claims, to third parties is on that account an exceptionable error. If the question of the plaintiff’s actual possession was in controversy, as *43it may have been so far as we can tell from the exceptions, the deeds would be competent upon that issue, since there is some presumption that the real owner is in possession.
At most, the deeds admitted were immaterial, because we must assume, no exception having been taken to the charge, that appropriate instructions were given to the jury to the effect that the real question involved was as to the plaintiffs possession, and that he could recover, if he were in actual possession, against a defendant who had no right of possession, jprovided the latter was guilty of the trespass complained of.
The admission of testimony that is mere irrelevant or immaterial, and which is not shown to have been prejudicial, is not the subject of exception.
Exceptions overruled.