The principal question, on which the decision of this case depends, relates to the title set up by the tenants. The question is whether, upon the facts reported, they have made out a good title by disseizin, commencing before, and continuing until, the time when the demandant purchased the premises of several of the heirs of Joseph Moors, who was the undisputed owner of a parcel of land, including the demanded premises, and died seized of the same. Unless, therefore, the heirs were disseized, when they conveyed to the demandant, his title is clearly good and the action is well maintained. On the contrary, if the demandant’s grantors were disseized when they made their conveyances to him, it is equally clear that their title did not pass by those conveyances, and the tenants’ title must prevail.
That the deed of a disseizee, the disseizin still subsisting, is inoperative to convey the title, is a familiar principle of the common law, which cannot be controverted. And on this prin*99ciple, the counsel for the tenants maintain the defence ; contending that they have given clear and conclusive evidence of the disseizin of the heirs of Joseph Moors, under whom the demandant claims title.
By the report of the evidence, it appears that Joseph Moors was a non conpos, and that Moses Hale was his guardian, and occupied the Keyes pasture lot, including the demanded premises, during the life of Moors, and after his death ; it being inclosed with other lands, owned and occupied by the said Hale, lying upon each side of it: That after the death of Moors, Hale purchased of several of his heirs their rights in the pasture, and soon after conveyed the whole of it to Nathan Tyler, with the usual covenants of seizin and of warranty against the lawful claims and demands of all persons.
The evidence thus far, we think, does not show any possession adverse to the title of Moors or his heirs. During his life, his guardian had the right of occupation ; and after his death, if his guardian continued his occupation, the presumption is, that it was for the benefit of the heirs ; and this presumption is confirmed by his purchasing the shares of several of the heirs soon after, [f, before that purchase, Hale’s possession was adverse, so as to amount to a disseizin, the disseizin would be purged by that purchase. His subsequent possession must be considered as the possession also of the other heirs, from whom he had not obtained a title. If a person enters on land, having no right or title, and maintains- the exclusive possession, taking the rents and profits, his possession would be considered adverse, and, if of sufficient notoriety, would amount to a disseizin. But if a person enters, having a title and a right to enter, his entry and possession are presumed to be in conformity to his title. No man is presumed, without evidence, to have done, .or to have intended to do, an unlawful act. If then a tenant in common enters on the common property, and takes the whole rents and profits without paying over any share thereof to his cotenants, his possession is not to be considered adverse to them, but in support of the common title. Lord Mansfield says that a refusal to pay such shares is not sufficient evidence of an ouster, without denr*100ing the title. Cowp. 218. It is true, that if a tenant in common continues in possession for a great length of time, without interruption or claim by the other tenants, this would be evidence from which a jury would be authorized to infer cr presume an actual ouster ; and so on similar evidence a grant may be presumed. But there is no ground for any such presumption or inference in the present case. The only evidence tending to show that Hale intended to hold the premises adversely to his cotenants, is his deed to Tyler, in which he undertakes to convey the whole estate ; and the material question is, whether this conveyance, and the entry and possession of Tyler claiming under it, are sufficient in law to constitute a disseizin.
It. was proved at the trial, that Tyler, immediately after his purchase from Hale, went into possession and occupation of the granted premises, and continued his occupation, without interruption or claim of any one, until he conveyed the same to Thomas M. Clark, with the usual covenants of seizin and warranty, as he purchased the same from Hale. During this time, (a period of more than six years,) he occupied the lot as a pasture, cut down the bushes, made a division wall between that and an adjoining lot,, and one year plowed it and sowed it with rye. These facts, being admitted, are in the opinion of the court, conclusive proof of the advere possession of Tyler, and show a disseizin of the heirs of Moors, under whom the demand-ant claims. For although the right and title of those heirs did not pass by the conveyance from Hale to Tyler, yet the deed purported to convey the whole estate. Tyler purchased the • whole, with a warranty of a good and indefeasible title, and he sold it afterwards with the same warranty. The presumption is, that he intended to hold the estate in conformity to his purchase ; and there is no evidence to rebut the presumption.
It does not appear that Tyler had notice or knowledge of the defect in his title. But whether he had such knowledge or not, it is very clear that he was in possession, claiming the entire title ; and this undoubtedly was an adverse possession, which, being open and notorious, amounts to a disseizin. To constitute a disseizin, it is not necessary, at the present day, to prove *101.he forcible expulsion of the owner ; nor is it necessary for a tenant in common to prove an actual ouster of the cotenant. If he enters, claiming the'whole estate, the entry is adverse to the other tenants. The intention so to hold the estate must be manifest, as it is in the present case ; and the open and notorious possession of Tyler was constructive notice of a claim adverse* to those heirs of Moors who had not conveyed their title. If they had notice by the deeds to Hale, and by him to Tyler, (which were duly recorded,) they must have known that the latter never entered as tenant in common, but that he entered as purchaser of the entire estate.
That this adverse entry and possession, claiming the whole es. tote, constitute a disseizin, is fully maintained by the cases cited by the tenants’ counsel, and by all the modern authorities. The doctrine is fully discuss.ed by Story, J. in Prescott v. Nevers, 4 Mason, 330. In that case, as in this, the defendant had a deed of the whole estate, but his title was only valid as to an undi vided quarter part, in common with other owners. But he made an actual entry into the whole, claiming the entirety in fee and of right. And it was held, “ that his acts of ownership were such as amounted to a disseizin of the cotenants ; for he entered as sole owner, and his possession was openly and notoriously ad verse to them.” “ There can heno legal doubt,” as it is said by the court in that case, “ that one tenant in common may dis-seize another. The only difference between that and other cases is, that acts which, if done by a stranger, would per se be a disseizin, are, in the case of tenancies in common, susceptible of explanation, consistently with the real title. Acts of ownership are not, in tenancies in common, necessarily acts of disseizin. It depends upon the intent with which they are done, and their notoriety.” We consider this a sound distinction, and it is fully supported by the authorities.
In the case of Clapp v. Bromagham, 9 Cow. 530, which was in all respects substantially similar to the present case, the same decision was made, and the same doctrine of disseizin was laid down by Chancellor Jones, who discussed the subject very fully and very ably. The English authorities, cited in that case, full) *102support the distinction laid down by Story, J. in Prescott v. Nevers. So in the supreme court of the United States, in Ricard v. Williams, 7 Wheat. 121, the same distinction was laid down. The court say “ an ouster or disseizin is not, indeed, to be presumed from the mere fact of sole possession ; but it may be proved by such possession, accompanied with a notorious claim of an exclusive right.”
By these and other authorities which might be noticed, if necessary, the doctrine of disseizin, as it has been held, seems to be well settled. To constitute a disseizin, actual force is not necessary ; but open and exclusive possession, accompanied with acts of ownership, manifesting the intention to hold the whole estate, adversely to the title of the true owner, is sufficient. Such a notorious adverse possession is considered as a constructive ouster, and is equivalent to an actual expulsion. The doctrine is founded on a reason similar to that assigned as the ground of the ancient doctrine of disseizin by the operation of a grant, which was founded principally on the notoriety of such a conveyance.
We are therefore of opinion, upon the facts reported, that the demandant’s grantors, before their conveyances to him, had been disseized by Tyler ; that this title by disseizin passed by his conveyance to Clark, and from Clark, through several intermediate conveyances, to the tenants. They leased the pasture, from time to time, to sundry persons, who continued the open and notorious occupation of the same, and one of whom was in the exclusive possession and occupation at the time of the conveyances to the demandant. 1 Shepley, 337.
It has been argued that the tenants are estopped to set up this title by disseizin, by the deeds of the heirs of Moors, who conveyed, on the 26th of September 1815, their shares in the estate to Hale ; but. we think very clearly, that the title by disseizin is derived from Tyler, and that no act of Hale, either before or after his conveyance to Tyler, can, on any ground, defeat the tenants’ title.
The conclusion is, that as the demandant’s grantors were dis-*103seized when they undertook to convey their rights to him, their deeds were inoperative to convey any estate to him, and his title therefore wholly fails.
Demandant nonsuit
Putnam, J. did not sit in this case.