delivered the opinion of the Court. We consider the present case in this stage of it, as presenting two questions ; 1. Whether the evidence admitted was proper and competent to be laid before the jury, from which they might infer the execution of some deed or that some other conveyance was made to Benjamin Melvin prior to his deed to Chamoers, by which he acquired a title or right to convey the same to Chambers in fee ; and if so, 2. Whether there was sufficient evidence to warrant the jury in finding such conveyance.
*260There is one fact stated in the report, which, from the explanations made at the hearing, and also from other parts of the report, we take to be rather an inference of law from the evidence, than as a substantive fact, and which should be taken with some qualification: It is stated in the report, that Parker conveyed to Fletcher in 1742, that Fletcher improved part of the premises and died seised in 1771. It is this last statement, “ that he died seised,” to which I allude. I do not understand that there was any proof of seisin, other than that above stated. As a presumption from those facts, it is undoubtedly correct, because, it being shown that it was conveyed by Parker to Fletcher ir. 1742, that Fletcher entered and improved part of the premi ses, and no alienation or conveyance by Fletcher being shown, the presumption which the law raises from these facts, is, that he remained seised to the time of his death. The difference in its application to the present subject is this ; if it was a fact conceded, that Fletcher was seised at the time of his decease, it could be controlled by no evidence ; whereas standing upon the footing of a presumption of fact, other evidence, either positive, as by deed or record, or circumstantial, as by circumstances, showing some non-appearing grant, it is open to question. It is a presumption which may be rebutted by competent evidence to counteract it, and not a conclusive fact.
The plaintiff demands one fourteenth ; that is, as one of seven children of his mother, he claims a seventh part of one moiety. The ground of this claim is, that Fletcher died seised, that by a residuary clause in his will, sufficient in terms to pass ail the estate of w'hich he died seised, he devised his property to his two daughters, Rebecca, who married Kittredge in 1773, and Joanna, the plaintiff’s mother, who married Melvin in 1777 ; that by the birth of issue Melvin became seised of one moiety of the estate, for the term of his own life, as tenant by the curtesy initiate ; that in 1782, Melvin con veyed the estate to Chambers in fee, by a deed, to which the name of the wife was signed, but in which she did not appear as grantor, and the plaintiff now puts his claim upon the ground, that though his father purported to convey a fee, yet as to one moiety of which he was seised in right of his wife only, and that for his own life only, his deed enured only to convey awav *261the estate which he had ; that upon the death of the plaintiff’s father and mother, that life estate was exhausted ; that the plaintiff had a right to enter, and that by his entry he acquired a seisin in himself, on which he now sues.
To encounter this prima facie title, the defendants offer the evidence in question, to raise a presumption in fact, that prior or subsequent to the conveyance to Chambers in 1782, some conveyance or family settlement had been made by deed, which through time and accident has been lost, by which Melvin obtained a title in fee or a right and power to convey in fee, and therefore that his deed to Chambers vested an estate in fee simple in him by force and operation of the deed itself, if such title and power was conveyed to Melvin before his deed to Chambers, or by way of estoppel or confirmation, if made after such deed.
The general course of this evidence is, that the deed from Melvin to Chambers does not recite or describe the estate as being held in right,of his wife, or derived from his wife,.or her father, or through the means of Melvin’s marriage ; it is left open to any presumptive evidence, that it might be derived from another source, or enlarged beyond that which his marriage alone would have given him ; that by his deed he professed to grant a fee simple, and not a life estate, the whole and not a moiety, and this with covenants of seisin and warranty ; that Kittredge and his wife, who upon the plaintiff’s hypothesis must have been seised in her right of one moiety in fee, acquiesced without objection, for almost fifty years ; that the occupation of Chambers and those who have claimed under him, though not strictly speaking adverse to Melvin and wife, yet has been adverse to Kittredge and wife, who have acquiesced ; that Chambers erected valuable buildings and died seised of the estate ; that it was sold by the guardians of Chambers’s children in 1814, as an estate in fee ; that the plaintiff and one of his brothers, who, upon his hypothesis, has the same title with himself, purchased a part of the estate derived through Chambers, for a full and valuable consideration. Many other circumstances were introduced to strengthen or impair the presumption of a grant, by which the estate of Melvin the elder was enlarged to a fee ; and this *262consideration was relied on by the defendants, that if there was any such deed, if it were not recorded, it would have remained in the hands of Melvin and his representatives, and could not be presumed to have gone into the hands of Chambers, inasmuch as it is the usual custom in this State, when an estate is granted with warranty, for the grantor to retain the original deeds to himself, and not to deliver them to the grantee, as part of the muniments of title.
The defendants deduced a regular title to themselves, through Chambers and the sale made under license of court by the guardians of his children.
The Court are of opinion, that this evidence was rightly received and submitted to the jury, and they were rightly instructed as to its effect and bearing. And we are not prepared to say, upon a review of the evidence, that the jury came to a wrong conclusion. We think that this case, though in many respects very analogous to the case of Jackson v. Mancius, 2 Wendell, 357, as a question of evidence, differs from it in many particulars.
In considering the effect of circumstantial evidence in raising a presumption of a deed or instrument, lost by time and accident, as a grant, surrender or the like, such presumption will be much more readily raised, where it is consistent with an apparent title concurring, with actual occupation and possession, than where it is opposed to them. Doe v. Cook, 6 Bingh. 174. ■
So the length of time since the transaction took place, to which the inquiry relates, is of importance in weighing the circumstances, because, though no inference can bé drawn from the silence and acquiescence of the tenant in remainder, during the existence of a particular estate, and though possession as against him cannot be deemed adverse, yet length of time and the consequent loss of documents, and of living memory from which the real truth of the transaction would most likely be ascertained, tend to give increased force and effect to those circumstances actually proved, which lead to a particular presumption of fact.
Judgment on the verdict.