And now after argument the opinion of the Court was pronounced by
Royce, J.The first question is, whether the deed from Oliver Phelps to Noah and Israel Smith was legally acknowledged. Without this requisite it would be inóperativer as against the defendant, and would moreover appear to have passed in evidence without any proof of its-execution. It is not indispensable that the place of taking should fully appear from the acknowledgement itself, provided it can be discovered with sufficient certainty by inspection of the whole instrument. And if we can infer, beyond any reasonable doubt, that the acknowledgement endorsed' upon this deed was taken in the county of Hartford and state of Connecticut, it is to be regarded as a legal acknowledgement; it being in proper form, and taken by a magistrate of competent authority by the laws of that state. We deem it a fair presumption, in the absence-of all evidence to the contrary, that the deed was executed at the time it bears date, and at the place of the grantor’s residence. And finding the acknowledgement taken so soon af-terwards in the county of Hartford, we can intend no other than the same county of Hartford in which the deed is supposed to have been executed. Questions of this sort have frequently arisen, and have always received a similar determination, when the instrument has furnished equal means for ascertaining the place of acknowledgement.
It is also urged for the defendant, that as his possession was commenced before he received his deed from Farrington, oris proved to have been in communication with him for the purchase, he has a right, on failure of that title, to rest upon, his antecedent *283possession, and put the plaintiff upon proof of a perfect title in himself. The rule of law has been long well settled, that when both parties derive their claims of title from the same person, the title of such person need not be shown; but he shall prevail who' has the better right from this common source. And although we have no occasion to decide, whether the defendant would be es-topped from setting up any independent right to the land, notwithstanding his purchase under the heirs of Phelps, yet a naked possession for a short period, unsupported by any colour of right, is ■clearly not sufficient to prevent die application of the rule to the present case. Such a possession must be considered as merged in the supposed title acquired by the purchase. The defendant, having no right of his own, admitted that of the heirs, and took ■shelter under it. And this admission cannot now be revoked by him, for the purpose of acquiring greater privileges at the trial, in the character of a mere trespasser, than he is entitled to claim in that of a purchaser.
Redjield, for plaintiff. .7. Mattocks, for defendant.Judgement of the county court affirmed.