This is an action of trespass, brought by the first society of Durham, against the defendants, for entering on a lot of land, and doing damage. At the time of the entry, the plaintiffs claimed to be in the actual possession. The jury were directed, “ if the society were in possession, that the burden of proof devolved on the defendants, to show a better title.” The legal propriety of the charge, thus far, does not admit of a question. Trespass is an action founded on possession merely ; and it is not necessary that the title should come into view. Any possession constitutes a legal right of recovery against a wrong-doer. Lambert v. Strother, Willes, *41218. Harker & al. v. Burkbeck & al. 3 Burr. 1556. Graham v. Peat, 1 East, 244. Byrne & al. v. Barber, 5 Johns. 66. Crosby v. Wadsworth, 6 East, 602. 1 Chit. Plead. 16. 175.
On the question, whether the plaintiffs were a new society springing into existence in 1804, or a continuation of the former society, it is not absolutely necessary to express an opinion. I will, however, briefly observe, that they were the old society organized under the statute, and continued to be the same ecclesiastical corporation, which, at first, embraced all the inhabitants of the town. The reasons, which justify this opinion, may be found in Sedgwick & al. v. Pierce, 2 Root, 431. which case I consideras sound law.
The defendants claim title through the grant, in writing, of one Thomas Bunce, executed in the year 1672, and witnessed by one witness only. Twelve years previous to this supposed grant, the law was passed requiring two witnesses to a deed, and has ever since remained in force. It has been contended, by the defendants, that the writing claimed to be a grant, was not a deed, but a transfer on the town books, authorized by the act of 1660. By that law, it was enacted, “ that a lawful record of a grant &c. in the town records &c. shall be of equal value with a written deed, provided the record, (if no other written deed be made as abovesaid,) be testified and subscribed by one witness, at least, besides the recorder.” The question, then, arises, was the grant of Bunce a deed, or a transfer on the town books ? Most unquestionably it was the former. The writing purports to be an indenture ; a term which denotes a deed of a particular description. It was signed, sealed and delivered ; facts which constitute the precise definition of a deed, and which preclude the idea of a transfer on the books, which, from its nature, admits of no delivery. And the entry of the register on the supposed grant, exhibits the light in which the transaction was viewed by him : “ Received of Capt. John Talcott, deed of land.” On this point there exists neither doubt, nor serious question.
It, however, has been insisted, that the antiquity of the deed authorizes a different application of the statute, from what it would, if it were a modern transaction. If the enquiry related to the proof of its execution, or the genuineness and authenticity of the instrument, the remark might have some foundation. But the precise question for determination, js, whether a deed with one witness only, is legally sufficient to trans*42fer lands, when tested by the requirements of the statute. On this subject, whether the transaction originated yesterday, or a century since, constitutes no essential diversity. The statute law., from the existence of the deed to this moment, has been invariably the same ; admit the authentication of the deed to be the same ; then, when the same measure is applied to the same subject, the time of the authentication cannot make any difference. From the same premises, the legal and logical result is precisely the same.
All pretence of title, then, on the part of the defendants, fails from the incompetency of Buncos deed, which constitutes an indispensible part of it.
It has been insisted, by the defendants, that the plaintiffs were estopped, by virtue of a lease, from questioning their title. Hezekidh Talcott, under whom the defendants claim, on the 4th of November 1762, made a lease of the premises to the Rev. Elizur Goodrich, during his natural life, for his use and improvement, and for the benefit of the ministry during his successor’s good pleasure. Under this instrument, Doct. Goodrich held possession until he died in the' year 1797. The death of Doct. Goodrich unquestionably terminated the estate created by the lease. Co. Litt. 62. h. s. 82. It follows, as an indisputable legal consequence, that the estoppel, if it ever existed, was then determined. Coke Litt. 47. b. Brudnell v. Roberts, 2 Wilson, 143. 4 Com. Dig. 85. 4 Bac. Air. 191. For, if a man take a lease for years of his own land, by indenture, if the lease determines, it shall be a determination of the estoppel. ' I repeat, if the estoppel ever existed; for “ a lessee by deed poll,” (and the lease was nothing more,) “ is not estopped to say, that the lessor had nothing at the time of the lease made.” Coke Litt. 47. b. Shep. Touch. 53. 4 Com. Dig. 78. 4 Bac. Abr. 189, 90. Besides, the plaintiffs were not parties to the lease, nor had they any legal interest in the land.’ The objection made is manifestly without support.
One question yet remains to be considered. It has been contended, that the plaintiffs were tenants to the defendants^ at the time of their entry. If such is the fact, they cannot, in an action of trespass, be permitted to dispute the title of their landlord. Balls v. Westwood, 2 Campb. Rep. 11. Jackson d. Low & al. v. Reynolds, 1 Caines, 444. Jackson d. Bleecker, v. Whitford, 2 Caines, 215. Jackson d. Vandeuzen & al. v. Scis*43sam, 3 Johns. Rep. 498. Jackson d. Van Alen v. Vosburgh, 7 Johns. Rep. 186. Clason v. Morris, 10 Johns. Rep. 538. Jackson d. Anderson & al. v. Mc'Leod, 12 Johns. Rep. 182. On this enquiry recurrence must be had to the motion. As the mover takes the burden of presenting the facts on which his. objection is founded, the court is not authorised to assume, that there were any, except those which he has exhibited, and which have been allowed. On examining the motion, it no where appears, that the plaintiffs were tenants to Hezekiah Talcott, or the defendants, or that an enquiry of this nature-wa-s intimated at the trial. The facts, as they are stated, are ; that Doct. Goodrich, under the town, occupied the land in question, until his death in 1797; that afterwards, in the same manner, it was possessed by the Rev. Mr. Smith, until 1817, when he relinquished it to the society. It is very material to remark, that there is no suggestion, that Mr. Smith, or the plaintiffs after him, entered by the defendants’ permisSion.
The defendants claimed, that the court should instruct the jury, that the premises, if not the defendants’ property, were vested in* the town of Durham; and that if they found the lease was executed by Hezekiah Talcott, at the request of the town, and accepted by them in 1762, their verdict must be for the defendants. This was the whole of their request. No pretence was made that the plaintiffs were their tenants, at the time the tresspass was committed. The point presented was a question of law, founded, not on the relation of landlord and tenant subsisting in 1818, the time of the defendant’s entry ; hut on the acceptance of the lease in 1762 ; an enquiry entirely aside from the above suggestion. Accordingly, the court charged the jury on the legal operation of the lease, and that, on the death of Doct. Goodrich, the Lessee, it expired. This is decisive to shew the manner in which the claim of the defendants was considered. The jury were instructed, that a tenant cannot be permitted to deny the title of his landlord ; and that the society would be bound by their acceptance of the lease, if they held the land under it, at the time of the tresspass charged. The court did not inform them, if the plaintiffs held under the defendants as tenants, in any sense, that they could not sustain their action, and for this convincing reason ; because the fact of such tenancy does not appear to» have been even intimated» If the matter contended for by *44the defendants existed at the trial, it should so prominently have been stated, as not to be the subject of reasonable doubt: On the contrary, no construction of the motion can render its existence even remotely probable. It is perfectly compatible with all the facts appearing, that the possession of Mr. Smith, and after him, of the plaintiffs, was adverse from its commencement.