By the Court,
Nelson, Ch. J.It is quite clear upon the evidence that neither of the parties to this suit coúld set up any claim to the premises in question, beyond a mere possessory interest therein. Hatheway had no title, and claimed none—he was probably a squatter; and the quit claim from him to Onderdonk simply transfered the interest he had, more or less, to the latter; Onderdonk stood in his place.
, The dispute then being one about the possession of the premises, the only question at the ciróuit, of any importance, was, which showed the better claim to them. The plaintiffs, having acquired the interest arising out of the prior possession and occupation, undoubtedly established the best right in the first instance, and so long as they could maintain this ground were entitled to the verdict. But the force and effect of a prior possession may be lost by abandonment, and this may be shown by paroi. There are several cases on this point. (Jackson v. Bightmyre, 16 Johns., 314; Jackson v. Walker, 7 Cow., 637; Whitney v. Wright, 15 Wend., 171.)
The learned judge, therefore, erred in not admitting the evidence of abandqnment by Onderdonk of his possession in his life time, so as to have enabled the defendant to go to the jury up op that question.
The offer to proy§ by paroi that Onderdonk had sold out to Smith was properly rejected, for, if the sale was by deed, *131it should have been produced or accounted for, if by paroi, it was nugatory, whether it related to the title or mere possessory interest.
New trial granted, costs to abide event.