We think the verdict in this case must be confirmed; and that the opinion given at the trial, and by which the jury were directed, was undoubtedly correct.
The tenant shows a seisin in himself, and his ancestor, Daniel Leonard, of more than sixty years before this action was commenced ; that is, from 1748, the date of his agreement for a compensation to Russell; which serves at least the purpose of proving an ouster of Russell from the demanded premises, or a sole and exclusive seisin claimed on the part of Daniel. He had then the possession and seisin, declaring his intention to exclude Russell therefrom; and in this exclusion Russell, after he came of age, acquiesced, and received, in part at least, the compensation provided for him by the agreement among his brethren, the co-devisees named in the will of their father.
Admitting the presumption of law to be, as the counsel for the demandants contended, upon the fact of a devise to the [ * 284 ] four brothers, and a possession by one of them, if* nothing more was proved, that it must be construed the seisin of the co-devisees; yet the agreement of the three brothers then of age, and the entry of Daniel, pursuant to that agreement, and in *283execution of their design to exclude Russell, and to refer him to a provision to be made for him by Daniel, repels all presumption of a continued seisin in Russell.
There is, therefore, the fullest evidence that can be required in any case, to prove a disseisin of Russell; and there is no evidence, on the part of the demandants, to prove that Russell, by any act or entry of his, had any seisin, in law or in fact, within sixty years before the action brought, as in their writ is alleged. This allega tion is essential to be proved in support of their right of action; and, failing in this, the tenant was entitled to a verdict, (a)
Judgment on the verdict.
[Vide Cummings vs. Wyman, post, 464. — Brown & Al. vs. Wood & Ux. 17 Mass. Rep. 68. — Shumway vs Holbrook, 1 Pick. 114. — Barnard vs. Pope, 14 Mass. Rep. 434. — Higbee vs. Rice, 5 Mass. Rep. 344.— Chapman vs. Gray, 15 Mass. Rep 439 - Ed.]