This is a writ of right, in which the demandant demands possession of an undivided fourth part of a certain tract of land described in the writ. The action was commenced in the year 1839, before the limitation of real actions by the *183Rev. Sts. c. 119, took effect The demandant counts on the seizin of John Hunt, his father, within forty years before the commencement of the action ; and the first question to be decided is, whether the seizin of John Hunt is satisfactorily proved by the evidence reported. No record title in John Hunt, nor in any other person, was produced at the trial ; but it was proved by sundry aged witnesses, that from seventy to eighty years since, and as far back as the memory of any of the witnesses extended, the farm in question was in the possession and occupation of the said John Hunt; that he lived on it with his wife and children, taking the profits, and continued his resi dence there, until his death in 1807. There is no evidence of any prior possession or elder title ; and it cannot be doubted that proof of such an ancient and long continued possession and occupation is good prima, facie evidence of a seizin in fee simple. In a writ of right, as well as in a writ of entry, a title by disseizin is a good and sufficient title, unless a better can be shown by the tenant. Lit. § 478. If, then, John Hunt bad no better title, he had a good title by disseizin ; for we corysider the evidence as establishing the fact beyond controversy, that he was in possession of the premises for more than forty years, and died seized ; for there is no proof that he was disseized by his son Ebenezer, under whom the tenant claims. His possession was not adverse, and .must be presumed to be under his father; and if he had concurrent possession with his father, that certainly would not constitute a disseizin.
It has been objected, that since the time when Ebenezer first began to take the principal management of the farm, the esplees were taken by him ; but considering him as occupying under his father, this is not a valid objection. The taking by the tenant is the taking by the landlord. 4 Dane Ab. 29, 30. And from the whole evidence, there can be no question that the possession or occupation by Ebenezer was by the permission of his father, so far. as he was capable of giving permission, and with the acquiescence of his mother and the rest of the family. We are of opinion, therefore, that the seizin of John Hunt continued up to the time of his death, and that during his lifetime, the. profits *184of his farm must be considered as taken by him, or for his use and benefit.
The next question to be determined is, whether Ebenezer Hunt had, after the death of his father, gained a good title by disseizin. He continued in the possession of the premises for more than thirty years after that event; and the tenant’s counsel contend that he thereby gained a good title, by disseizin, against the other children and heirs of John Hunt. This question involves another, namely, whether the plea of darrein seizin is a good plea in a writ of right. This is said to be doubtful; but the grounds of doubt do not seem to be stated with precision, nor to be satisfactory. Roscoe, in his Treatise on Real Actions, Vol. I. p. 206, says, that “ the reason given against such a plea is, that the tenant may tender the demi-mark, and have the ancestor’s seizin inquired into.” This reason for the doubt is not stated by Judge Jackson, in his Treatise on Real Actions, p. 285; and, upon the authorities, the doubt does not seem to rest on any reasonable and substantial ground. In the writ of mort (P ancestor, in formedon in the descender, in nuper obiit, and in a writ of cosinage, as well as in a writ of entry, it is a good plea that the demandant himself was seized after the death of the ancestor. Roscoe, ubi sup. And we think, notwithstanding the doubts suggested, that it is a good plea or defence in a writ of right. The tenant, however, has failed to make out any such defence. There is no evidence that the demandant ever entered the premises after the death of his father, and became actually seized of his share therein ; and before the revised statutes, he could not maintain an action, counting on his own seizin. In a writ of entry, or a writ of right, the demandant must count on an actual seizin, and a seizin in law is insufficient. Before entry by the heir, after the death-of the ancestor, or an equivalent act, he cannot maintain an action of trespass, or writ of entry on his own seizin, unless the land be vacant and unoccupied. Plowd. 142. 2 Rol. Ab. 553. Wells v. Prince, 4 Mass. 67. Dally v. King, 1 H. B. 1. Bac. Ab. Trespass, E. 3.
The law, in relation to .the question under consideration, is correctly stated in 2 Preston’s Abstracts, 345. “ The wri' of *185entry sur abatement,” he says, “ must necessarily be grounded on the seizin of the ancestor ; and therefore fifty years is the limitation within which a writ of entry sur abatement must be brought. It does not seem to have ever been supposed that the disseizin was to the heir, so as to bar him, unless he should bring his action within thirty years.” Nor can it be maintained, as a ground of defence, that by the entry of Ebenezer Hunt, after the death of his father, all the heirs became actually seized ; because, unless his entry was adverse to the claims of the other heirs, there is no evidence of a disseizin ; and on that ground the defence fails.
The remaining ground of defence in support of the tenant’s title, and that on which his counsel seem principally to rely, is the presumption, arising from the long possession of Ebenezer Hunt, that the premises were conveyed to him by his father, or that the other children and heirs have relinquished their shares therein to him, since the death of their father. As to the pre sumption of a deed from the father, we think there is clearly no ground on which it can be maintained. Nor was it much relied on at the argument. The father had not the mental capacity to make a legal conveyance of his property, or any other binding contract; and the occupation of Ebenezer with his father is no ground for the presumption of a conveyance from him, had he been of a capacity to make a legal conveyance. Ebenezer, for a number of years before his father’s death, had the principal but not the sole management of the. farm, as the demandant had, before the return of Ebenezer from Ackworth ; but the fathei and the mother assisted. This joint or mixed possession and occupation is certainly no foundation for the presumption of a grant.
The question then is reduced to this, namely, whether the possession of Ebenezer, after the death of his father, is a sufficient foundation for the presumption of a grant or release from the other children. It must be admitted that there is no legal or artificial presumption of any such grant. “ In general,” as remarked by Story, J. in Ricard v. Williams, 7 Wheat. 110, “ it is the policy of courts of law, to limit the presumption of *186grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies, it constitutes ordinarily a sufficient title or defence.” So Lord Mansfield says, in Eldridge v. Knott, Cowp. 216, “ there is no instance of setting up any length of time within the imitation fixed by the statute, as a bar to the demand.” And so Aston, J. remarked, in the same case, that mere length of time, unaccompanied with other circumstances, ought not to alter the limitation fixed by the statute, and set up another. If the law were otherwise, it would effectually alter and do away with the intended operation of the statute of limitations. That impliedly declares, that in a writ of right no disseizin or adverse possession shall be a bar unless it continues for forty years.
Now in the present case there are no circumstances super-added to the adverse possession of Ebenezer Hunt — if his possession were adverse — leading to the conviction or belief that he ever had a grant from the other children and heirs. On the contrary, the circumstances, which were proved, rather tend to weaken the presumption of any such grant. There would have been more reason for the presumption, if the occupation had been by a stranger. Ebenezer had a right to continue his occupation as one of the heirs ; and there is no clear proof that his occupation was intended to be adverse to the claims of the other heirs. He had made considerable advances during the life of his father, in repairing the house, building a barn, and for other expenses, for which he expected, probably, to be reimbursed from the profits of the farm. To this the other heirs could not reasonably object. And this may account for their forbearance to claim any share of the profits. Another circumstance, suggested by the demandant’s counsel, might have some influence to prevent them from interposing any such claim. It appeared that Ebenezer had acquired a large estate, which his brothers and his sister might reasonably expect to inherit; and if so, they might have been unwilling to advance claims that perhaps might give offence. But whether these suppositions arc probable or not, we think there is no evidence to warrant the inference, that a conveyance to Ebenezer from the other heirs has ever been *187made. The probability of such an act is not sufficient. The evidence to support a natural presumption of a fact must be such as to lead the mind to a conscientious belief of its existence, beyond a reasonable doubt This the evidence in the present case fails to do.; and, as it seems to us, it fails to establish a reasonable probability of any such conveyance as is set up by the tenant to defeat the demandant’s right. That right is not barred by the statute of limitations, and ought not, therefore, to be defeated by any presumption or inference not supported by convincing and satisfactory evidence.
Judgment on the verdict.