Lawrence v. Hunter

The opinion of the court was delivered by

Kennedy, J.

The first error assigned is a bill of exception to the opinion of the court below, rejecting a survey, or the notes of one, made by the deputy surveyor of the district at the time, including the land in question, for Philip Lawrence, the ancestor of the plaintiff in error, as an actual settler thereon. The objection to its admission as it appears from the face of the bill of exceptions is, that it did not designate the same boundaries or quantity of land claimed by the plaintiff in error, who was the defendant in the court below, in his special defence. But it has been further objected here in argument, that it was a mere nullity and had no efficacy in it whatever for any purpose; because the land embraced by it had been previously granted by the state to the defendant in error, and therefore was rendered incapable of being taken up by the ancestor of the defendant below, by his making a settlement upon it, and having a survey made thereof by the deputy surveyor of the district within which it lay at the time; and therefore as the land lay north and west of the rivers Ohio and Allegheny and Conewango creek, the settlement and improvement made upon it by him enured to the benefit of the plaintiff below. The land, from its situation, falls within the provisions of the act of the 3d of April 1792. By this act lands lying within that section of the state, not previously or subsequently appropriated to any public or charitable use, were made liable either to be obtained from the state by warrant upon payment of the purchase-money in the first instance, subject, however, to the condition of a subsequent settlement and improvement to be commenced thereon by the warrantee within two years thereafter, and to be continued for the space of five years; or by a settlement and improvement being made thereon in the first place, to be followed by a survey thereof made by the deputy surveyor of the district at any time after the settlement, and the payment of the *74purchase-money and procurement of a warrant therefor within ten years from the date of the act. By the 8th section the deputy surveyor of the proper district is expressly required, upon the application of any person who shall have made an actual settlement and improvement on lands lying north and west of the rivers Ohio and Allegheny and Cone wango-creek, and upon payment of the legal fee, to survey and mark out the lines of the tract of land to which, such person may, by conforming to the provisions of the act, become entitled by virtue of such settlement and improvement. A survey made in such case by the proper deputy surveyor must undoubtedly be regarded as an official survey; as much so at least as if it had been made in pursuance of a warrant; because it has been made by a public officer appointed for that purpose by the state, and in pursuance of the requisition of the act, which is of equal authority with any warrant that can be issued from the land office. Now had Philip Lawrence, the ancestor, taken out a warrant for the land and procured a survey to be made of it in pursuance thereof, by the deputy surveyor, when he first made his settlement upon it, instead of settling and improving thereon as he did; and after this had been done, he had entered- upon the land and settled there with his family, and so continued to reside thereon, improving it as he did until his death, and it had then descended to his two sons, George and the defendant below, who taking possession thereof had continued the settlement and improvement in the same manner that they have done, I would ask, could it be doubted that the warrant and survey in such case, although void and of no effect whatever as against the warrant and survey of the plaintiff, and notwithstanding the settlement and improvement enured to his benefit, would have been admissible in evidence for the purpose of showing the- extent of the actual and adverse possession of the ancestor? certainly not, whether decided upon reason or authority; because it would have gone to prove the common and ordinary case of what is called colour of title; and as Philip Lawrence the ancestor had entered and taken possession under it, his possession therefore would have been rendered coextensive with his survey. It is a mistake to suppose in such case that the extension of the disseisor’s possession to the lines of his survey depends upon its validity: for it would be absurd to hold that to be valid, which at most only tended to show colour of title; a thing that every one considers invalid; in short null and void. The survey in such case, though of no efficacy in giving a title to the land, yet being made by a public officer of the state professing to act under the authority of law, may be considered apparently of some virtue, and be received as evidence to show the extent of the possession which the party for whom it was made intended to take, and has taken, by entering upon the land and remaining there, occupying and improving it as the absolute owner thereof. His actual possession will be considered as-having reference to his survey, and be taken to. extend to its utmost *75limits, so as to repel that constructive possession of the land beyond his pedis possessio, which otherwise would be ascribed to the true owner in virtue of his better right. The evidence offered of the survey would, therefore, had it been received, have gone to prove a disseisin of the plaintiff of'all his land included within the lines' of the survey made for the ancestor of the defendant below. This fact, had it been established in connection with what was shown' and not denied, that the ancestor had'diod in the possession of the land, and that thereupon it descended to his sons George and Philip, the plaintiff’s right of entry wouldhave been shown to have been' taken away. Littleton,sect. 385; Co. Litt. 237, a. That this would* have been the result had the evidence been admitted can not, I think, be refuted; because it is impossible, to assign any reason foy excluding the evidence offered, that.would not also with the same force and application go to exclude the supposed survey made in' pursuance of a warrant granted- to the ancestor of the defendant’ below, before he entered upon the land.- In principle the two surveys are alike, for neither can be considered as good or valid in law;-the one is as much a-nullity in every respect as the other, where the land inclosed by them has been previously appropriated-under a prior grant from the state. A deputy surveyor is forbidden.1' to make a survey under a junior-warrant upon land previously-surveyed under a prior warrant; and if he does so,it will be deemed' void; and more than this can not be predicated"of a survey made'by him, in virtue of a settlement- actuálly made on'land lying north" and west of the rivers Ohio and'Allegheny and-Conewango creek; that has been previously, surveyed'under-a-warrant: They are1 both necessarily alike inefficacious, because it would be contrary* to every-principle of natural justice as'well'as’to the constitution* and laws of the state, that they should- affect or take away- rights' vested under prior grants. But-still, notwithstanding their absolute* invalidity, as they are both made uhder the appearance' of authority, and by an-officer on behalf of the state appointed for that purpose, they are therefore looked on as official, not as mere private surveys;* and- as. giving colour of title, or title to the land until-a better' be; shown: The evidence of the survey, made by the deputystirveyor* of the district for the ancestor of the defendant below, in virtue-of his settlement and improvement upon the land, which included the; land in dispute, was therefore material and ought .-to have'been1 admitted by the courts

The-remaining errors consist of exceptions to the charge of the-court and their answers to the first, second, third and fifth points* submitted by the counsel of the defendants below. That part of the charge excepted to, and the answers to- the first, second arid* third points relate to the question of ouster; whether-from the evi-' dence given, if the jury believed it, they ought not to have been* instructed by the court, that the plaintiff below had been ousted' from the whole of the land claimed by-the defendant, for a period *76of twenty-one years before the institution of this action, so as to make the statute of limitations a bar to the plaintiff's recovery; and therefore they will be considered as coming under the same head or branch of the case. It cannot be denied that the statute of limitations applies as well in favour of a defendant in ejectment, who has entered and taken possession of the land without colour or even the shadow of title, as one who has entered and taken possession under it. The only apparent rational distinction that seems ever to have been taken between the two cases is, that in the former the extent of his possession has been limited and confined to the ground actually cleared, and used either for the purposes of erecting buildings thereon or producing something with a view to derive either profit or pleasure therefrom, seeing he has no apparent title or claim of any kind, to which his entry and taking possession can be referred and be thereby measured; whereas in the latter-case he has something of the kind; and therefore his actual possession has been held to be coextensive with the claim under which it was shown that he entered. It is not because he is an intruder or trespasser in the one case more than in the other, that the distinction seems to have been taken; because in either case he is a like trespasser. The great object and design of the statute was to promote the peace and quiet of the community, and to advance the interests of the state by protecting men in the possession of lands, which they hád held as their own absolutely and without interruption for twenty-one years. Such lapse of time and possession was intended in effect to give them an indefeasible title to the same; so that no strife or litigation might arise thereafter in respect to them; and that those in the possession might be induced to go on confidently in improving their lands, and thereby render them more valuable, both to themselves and the state. Then, in order to accomplish this, the statute ought to receive a favourable interpretation for the occupant of the land. The man who enters upon land without sufficient title or authority, though he has what is called colour of title, is bound in contemplation of law to know whether his title is good or not, and likewise that colour of title is not such as gives him any right whatever to the land; or that it will even protect him from being sued and treated in all respects as a trespasser by the owner thereof. But if colour of title be deemed not only sufficient to show his intention to take possession, upon entering, of all the land covered by his colour of title, but after having entered and seated himself thereon to extend his actual possession to the utmost limits thereof, it would seem to be strange why all this could not be manifested as clearly and effected as completely by his circumscribing the land he intended to take, and had taken possession of, by running lines and marking them as run distinctly upon the ground; and more especially, when after having thus taken possession and designated his boundaries, he makes return of the quantity contained therein, as seated land belonging to him *77in bis own possession, to the assessors for the purpose of having it taxed to him as such; and after being1 assessed and taxed accordingly, he has paid the taxes imposed thereon for a period of twenty-one years. Where an intruder has in this manner taken possession of what may be considered a reasonable quantity of unseated land .for a farm, to be occupied in'the usual manner according to the custom of the country, and after'Having so occupied it for a-period of twenty-one years, no practical farmer or other person fully acquainted with the nature of the subject could doubt for a single moment that he was not protected-by the statute of limitations,-and did not come clearly within what would be considered the plain and obvious meaning of it, when construed according to the common and general, if not the universal, understanding and acceptation of its language. And this unquestionably is the rule that ought to govern in the interpretation of such statutes. Under a feeling, however, with some, that the statute would-operate unjustly if taken according to the ordinary acceptation of its terms, by depriving individuals of their rights without their consent or their receiving any compensation therefor, a subtile and artificial, though perhaps ingenious, construction has been resorted to, giving to it-a’ narrow and limited operation, altogether at variance with its plain-design and the common sense of mankind, by confining it to'such part of the land as shall have been enclosed by fence or otherwise, and cultivated or used for the space of twenty-one ye'ars. To constitute an ouster or disseisin if is not necessary that 'there should be any actual force used, or that-the owner should be kept out of, or prevented from regaining his seisin or possession by force'; nor' that' the disseisor should inclose all that he means to take- possession of by an impregnable wall so as to prevent the disseisee from re-entering upon him. It is sufficient, according to the Utmost that is required- by any one, that an entry be' made into land in- opposition' to the will, or without the consent of the owner', though done peaceably and without the least violence", by one' who incloses- it with1 any kind of fence and" remains' there occupying and using it after-wards as his own. In such case the owner will be deemed ousted or disseised of all the. land so inclosed and used. It has also been5 said that if he occupy the ground by clearing it and then using'it for the purposes of husbandry without inclosing it, the owner will1 be considered disseised thereof, and the statute of limitations will commence running against him.

And why should it be so? Is it not because he has thus by his-acts of ownership, manifested his intention to use and occupy ths' land as his own without any regard to the owner thereof, In maiding an entry into land and taking possession of it, the’use that; is intended to be made of it, must be taken into view, in order to decide correctly as to the extent of the possession that has been-taken. If it be for the purpose of using it as a farm, it is admitted by all that his actual possession should be considered as extending *78to all that he has erected buildings on, or has inclosed and uses for any of the purposes of husbandry; yet the object of inclosing land upon a farm, is not done for the purpose of evincing an intention to take the actual possession of it, but to secure the fruit of the labour performed in tilling it or make it answer the end for which it is designed. But if fencing it around be unnecessary to make it answer any purpose immediately connected with and essentially necessary to the useful and proper management of a farm, it would be absurd, if not ridiculous, to require that it should be inclosed by a fence of some kind, or otherwise, the occupant or farmer of the land could not be deemed to have the actual possession of it. Any portion of the land, therefore, which may be made useful and advantageous as a part of the farm without its being inclosed by a fence, or otherwise, and is used as part of the farm in that way, must be considered as in the actual possession of the occupant and farmer. Now, woodland, it will be admitted by every one who has any experience in conducting and performing the business of a farm, is not only useful, but essentially necessary, as a component part thereof, in order that the wants attending it may be conveniently, and at all times, supplied, as often as occasion shall require. It is not only necessary in fact, but in contemplation of law it is so, for the purpose of supplying the common estovers, that is, necessaries, such as house-bote, fire-bote, .plough-bote, or hedge-bote. 2 Black. Comm. 35. Throughout the greater part of the state, therefore, every farm consists in part of woodland: and only in a few instances is any of it ever inclosed, though deemed by every one essentially necessary to the perfect enjoyment of the land as a farm. Instead of inclosing it with a fence it is usual, and considered sufficient to have it included within the boundaries designed to be occupied and used as a farm. These boundaries are designated by making or setting up marks on the ground, either by notching and blazing the trees standing on or near the lines with an axe or hatchet, or by setting up stakes or stones therein, which being the common land-marks of the country are generally recognised and known as such by every one who sees them. If a reasonable quantity of land, therefore, for a farm, be thus designated by the occupier of it, and he uses it for that purpose in the manner that is customary, he is from the nature of the thing and according to the general understanding of the country looked on and regarded as being in the actual possession of the whole of it. And if he be suffered to remain in the possession thereof for twenty-one years without any entry being made or'suit brought by the owner, he will come very fairly within the protection that was intended to be afforded by the statute of limitations as to the whole of the land. But if it be held that such a possession is not. provided for by it, then the peace of the community and the protection, which was intended to be given to individuals, by securing them in the enjoyment of their possessions, rendered valuable, oftentimes, by means *79of tlieir labour and money, greatly beyond the primitive value of the lands themselves, will be inevitably defeated. Now, in the present instance, all that has just been mentioned, in regard to taking possession of the land, designating the boundaries of it, by marks made upon the ground, and occupying and using it as a farm in the manner that is usual according to the custom of the country, appears, from the evidence, to have been effected by the defendant below. He entered into and took possession of the land in dispute, in 1811. First, by erecting a dwelling house thereon, into which he removed and lived with his family, clearing, improving and occupying the land contained within his boundaries as a farm until after the bringing of this action, which was in 1S34. In designating and marking his boundaries, which seems to have been effected shortly after, or about the time he entered into the land, his neighbours were called in to assist in doing it, and thus became witnesses to all that was done in regard to it. Besides the marks made on the ground, their presence was well calculated to give notoriety to the extent of the possession which he thus took of the land. Seeing then no objection can be made, on account of the quantity of the land, as it must have been considered at that time, and indeed even yet but a small farm, in that section of the state where it lies, it appears to me, that what has been just mentioned as being done by the defendant, ought without more, to be held sufficient to establish an adverse possession on his part to the whole of the land contained within his boundaries, from the time that he became a resident upon it, and had his boundaries designated and marked. But he did more; for he returned the whole of it to the assessor, when he first took possession of it, as land owned by him, upon which he was seated, that he might be taxed for it as such; whiéh was accordingly done; and the taxes paid by him annually, for twenty-three or four years successively, before the bringing of this action. Thus giving the most unequivocal and public demonstration not only of his claim to the land, but of the quantity likewise, which he claimed to be in the actual possession of We are, therefore, clearly of opinion that the court below ought to have instructed the jury, that, if they believed the evidence tending to prove all these facts and circumstances, they were sufficient in law to show that the plaintiff below had been ousted in fad of all the land, designated and claimed by the defendant below, for twenty-one years and more, before the bringing of this action; and that he was, therefore, barred by the statute of limitations from recovering any part of it. I do not place the ouster here upon the ground of any implied consent of the plaintiff below, which might be drawn from his suffering the defendant there to pay the taxes; but upon the ground that the evidence, if credited, shows an ouster effected by the acts of the defendant, in entering and taking possession of the land; and hence the filing of the claim to the land, warranted in the name of the plaintiff’, by the agent of the Pennsylvania Popu*80lation Company, in the commissioners’ office, can have no effect whatever upon the possession of the defendant below, so as either to change the character or limit the extent of it. But I shall show in the course of the sequel, that their filing such claim ought not to have been held to avail any thing against the claim of the defendant below under any aspect of the cas.e. But had the case of the defendant below stood in n.eed of the aid of evidence, showing consent to an ouster, on the part of those who are alleged to have been the owners of the land and Hunter warrant at the time, the lease given to George Lawrence, by their agent, Enoch Marvin, is strong if not conclusive evidence of it. That leaye was given in 1817; and in describing the land thereby leased to George Lawrence, as being 200 acres, and part of the land included in the survey made under the warrant granted in the name of the plaintiff, they also describe it as adjoining “the land of Philip Lawrence,” meaning the defendant below, and referring to the land in dispute here as his land. Thus plainly admitting him. to be seised at that time of the land in fad, at least, if not in law.

But it has been argued that the lease given to George Lawrence in 1817, only seventeen years before the institution of this action, is conclusive evidence of an entry having been made into the land so as to restore the possession thereof to the plaintiff. That though a recovery of the possession by the lessors, previously to executing the lease, may not be deemed indispensably necessary in order to render it valid, still the acceptance of it by the lessee is an admission of their possession at the time. This may be all correct enough, as against George, the lessee, were he the defendant. But it is .contended that from the evidence, the defendant below can not be considered as being seised of the freehold at that time in the land in question, but must be taken to have held it as tenant at will, or for years under George; and consequently, an entry into that part of the survey then in the actual possession of George, who must be regarded as the disseisor of that part in the possession of the defendant below as well as in his own, is in law considered an entry into the whole. Certainly, a previous entry into the land for the purpose of making a lease, either for years, or for life, was wholly unnecessary, as the land lay within this state, where the law authorises the disseissee to dispose of his land as he pleases, though it be held by and in the possession of the disseisor at the time, without his making any entry into it. Hence, that which was so entirely unnecessary, need not, and can not, well be presumed. And a_s to the admission of George, of an entry having been made into the land by his lessors, it must be confined to the land of which he took the lease, which clearly excluded the land of the defendant, which is now the subject of dispute. And though it be true that an entry into part of the land, in the name of the whole, is deemed sufficient to restore the party, having a right to make it to the possession of the *81whole; or an entry generally into any part of the same tract or survey of land may be considered sufficient to reinvest him with the actual seisin of the whole of it, where it is all holden by one disseisor or his alienee. But if different parts of it be held in severalty by the disseisor and his alienee, or by two or more of .his alienees, or by several disseisors, or their respective alienees, there must be an entry made into each part, in order to recover the whole: otherwise the possession will only be'regained of those parts into which entry is actually made. Co. Lilt. 252, b. Then in what relation did the defendant below stand to George Lawrence, at the time the latter accepted of the lease—was he either a tenant at will or for years to him, as it is alleged, or from the evidence must he not, in fairness, be considered as having the freehold in the land for which he has taken defence here? It is true that it does not appear distinctly, how or upon what terms, the defendant below came last into the possession in 1811. But it does appear clearly enough from the evidence, that their father Was, properly speaking, the disseisor; that he died in the actual possession of the land, apparently seised of the inheritance, which descended to his. sons, George and the defendant below, as his heirs atla w: so that they may be said, with propriety, to have come to their first possession of the bphd by act of law, and not by any act of their own. Having thus come to the possession of it, they could not have been dispossessed of it by entry merely; which is a summary remedy given against the disseisor himself or his alienee, but not against his heirs, who have acquired the possession by descent, the noblest and worthiest means, says my lord Coke, whereby lands are derived from the one to another.' Co. Lilt. 237, a. Seeing that the heir in such case has acquired his possession by law, the law will protect him in it, until the party claiming the possession from him shall first prove himself entitled to it in an action to be instituted for that purpose. George Lawrence and the defendant below having had the possession cast upon them by law continued together in it till 1809 perhaps, when the latter, upon some understanding between them, which does not appear, gave up his possession to the former. In the course, however, of a couple of years, the defendant below returned and came into the possession again, when a division of the land was made between him and George, whereby he obtained the land in dispute in severalty, and has continued to hold it ever since. It does not appear that, any instrument in writing ever passed between them on the subject, which would be sufficient in law to divest either, of his right of inheritance, or freehold estate in the land; nor yet that any parol contract made between them, was ever carried into execution, which could have that effect, excepting the partition of the land. Hence, the presumption would be, that the defendant below, upon his-return, must have taken possession of the same interest in the land which he derived from his father and held before he left it; and *82that having resumed his former position, he and George made partition of the land, which they claimed to hold as tenants in common, so that each might thereafter hold his interest therein in severalty. But even supposing the right of entry not to have been taken away by the descent cast, still as the land was divided between the two brothers, each claiming an interest in fee simple therein, by descent from his father, and having taken exclusive possession thereof, according to the partition made between them, an entry into George’s part could not reinvest the disseisee or his assigns with the seisin of the part of the defendant below, as the latter had acquired a separate and distinct freehold in a separate part of the land, from that in Avhich George held his. A recovery in a Avrit of assize against George could not have affected the right or possession of the defendant below in his part of the land. To have recovered the possession of his part an assize must have been brought against himself; consequently as a recovery in assize against George could not have availed any thing against the defendant below, so neither could the entry into George’s part alone avail any thing against the defendant below. Co. Litt. 252, b. George Lawrence’s taking a lease of his part, therefore, could have no operation whatever towards reinvesting the seisin or the possession of the part of the defendant below, in the disseisee or his assignees. Indeed it is manifestly evident that no effect of the kind was either intended or expected by the parties to be derived from it, because the land of the defendant below was not embraced in the lease, but excluded; and as the lease refers to the land of the defendant below, making it a boundary of that leased to George, and expressly calling it the land of the defendant below, it Avould seem to be an admission on the part of the lessors, that the defendant below had a separate and distinct seisin of the land in dispute; and of course, no lease that they could give, or that George would accept of, could affect the defendant’s right and position in regard to the land in any way.

But it is contended that the defendant below has, in effect, admitted upon record the entry of the plaintiff, as alleged, into the land in 1S17. This, it is claimed, is to be inferred from the circumstance of the defendant’s having defeated the plaintiff in 1823, on the trial of his action of ejectment, commenced in 1802, for the land in question. It is argued that the defendant below must have set up such entry, as the plaintiff alleges was made in 1817, during the pendency of that action as a defence to it; and that this becomes a necessary inference, because he had, as the counsel for the plaintiff contends, no other possible defence, Avhereby he could have defeated the plaintiff as he did. It does not appear in any way upon what principle or ground the arbitrators Avere induced in that action to award in favor of the defendant. But it is most likely that on the trial there, as it was on the trial here, it was avowed either on the part of the plaintiff that the action was not *83brought by or at the instance of Hunter, the nominal plaintiff; or, if not avowed and admitted, that it was proved by the defendant not to have been brought or authorised by him, but commenced and prosecuted at the instance, of others, who claimed to have an interest in the Hunter warrant, and the land surveyed under it, and that no proof was made by them, or on their behalf, showing any such interest; and that, therefore, the arbitrators found in favour of "the defendant. And if such was the case, no doubt they were right in so finding, as will be made apparent presently. It is certainly more reasonable to suppose that they founded their award upon tenable ground than upon an entry, which it would seem was never made, and could not have been admitted by the parties to have taken place, unless it had been the interest of both to do so, which can not be pretended.

The answer of the court to the fifth point submitted by the counsel for the defendant below remains now to be considered. The counsel submitted in this point to the court, that as it had been avowed and distinctly admitted by the counsel for the plaintiff that this action had been instituted at the instance and for the use of the Farmers and Mechanics’ Bank, without any authority to do so from James Hunter, the plaintiff on record and the warrantee in the title under which the bank claimed to recover; and that as no evidence had been given, showing that the bank had any right or interest in the warrant and land surveyed under it, the action could not be maintained. The court, however, instructed the jury that it could. If the land surveyed under the warrant never was legally transferred by the warrantee; and it had been shown on the trial of the cause that the Pennsylvania Population Company were the equitable owners of the land by their having taken out the warrant in the name of James Hunter and paid the purchase-money for it to the state; or that they had purchased the land or the warrant from Hunter and paid him for it, without having obtained a legal transfer thereof; or that they had become the equitable owners of the same in any other way, it would have been sufficient to have authorised them or their assignees to have brought the action, as it is, in the name of James Hunter the warrantee. But without making such proof it is perfectly clear that the^defepdant below had not only as good, but a better right to defend himself under the title founded upon the Hunter warrant, than the bank had to maintain the action upon the strength of it to recover the land for their use; because it is an established rule in the action of ejectment that the plaintiff must recover upon the strength of his own title; but the defendant has a right in defending himself to bring to his aid any title whatever for the land, to which the plaintiff does not show that he has a right. This the defendant may do, though he has not even the shadow of claim or title to the land himself. This being the settled rule; and it being admitted that all the claim or right which the bank had to the warrant and the land surveyed under it, was de*84rived from the Pennsylvania Population Company, the inevitable consequence must be that, unless some evidence were given tending to prove that the Pennsylvania Population Company had a right to, or interest in, the land under the warrant, the bank could have none; and hence the defendant below would have had the right, had it been necessary for his protection to have claimed the benefit of the title himself under the warrant, as an outstanding one, better than any that the party professing to be the real plaintiff had shown. The question then is, was there any such evidence given on the trial? I must confess I can not discover even the least spark of it. The circumstance of the company or their agent being in the possession of the Hunter warrant some fifteen years after the survey had been made under it, and their professing to claim the land under it amounts to nothing towards showing a right to the land. It is at most, only a declaration of claim without any thing to support it; and therefore goes for nothing where it is requisite to establish á right. Neither does their filing a description of the Hunter title and their claim to the land under it in the commissioners’ office árnount to any thing more than a bare declaration of claim to the land on their part. It does not even create or show a colour of title to the land. •_ . . . - .

For the same’ reason, that is, that no right on the part of the company to the land was shown on the trial, it is obvious that those claiming under them had no right to enter upon it, and by this means claim to have dispossessed the defendant below. For without a right to the land no one can claim to gain any thing by an entry into it, more than he can do by bringing 'an action to recover it. “ The entrie of a man,’.’ says my lord Coke, “ to recontinue his inheritance or freehold, must ensue his action for recoverie of the same.” Co. Lit. 252, b; 3 Black. Comm. 174-5. The right of entry, therefore, is governed and regulated in this respect by the right of the party to maintain his action; for unless he has a right of action he has no right of entry.

Judgment reversed and a venire de novo awarded.