1. The first ground on which the defendants claim a new trial, is, that the deposition of Lucy Darling was rejected. This was in obedience to the statute, (p. 47.) which directs, that “ the magistrate shall certify the reason of taking such deposition.” But it was not done ; and the omission can no more be supplied by parol, than any other official act of the magistrate.
2. Another ground is, that the declarations of Lucy Darling, while occupying the land in Reading, were admitted. Such declarations are always admitted to shew the nature and extent of such occupation, and as paid of the res gesta. But in this case they could have no effect, as she occupied under an absolute deed from the former owner.
3. The defendants claim, that the court ought to have *149charged the jury, that from the facts conceded, Lucy Darling was possessed, in her own right in fee, of real estate in Reading, of the value of 100 dollars, during her continuance therein. The execution and delivery of the deed from Joseph Burr to Lucy Darling, upon the land in question, were equivalent to livery of seisin, and gave her possession ; and if Burr after-wards occupied any part, it must have been under her ; for the legal estate was in her, and they lived peaceably together in the same house.
4. It is claimed, that Lucy Darling executed and delivered to Joseph Burr a defeasance, which converted his deed into a mortgage. But this defeasance was a contract to reconvey, upon certain terms. There was no debt to be secured ; and there was no mortgage in the. case.
As the charge of the judge was incorrect, I advise a new trial.
IIosmer, Ch. J. and Lanman, J. were of the same opinion. Brainard, J. was absent; and Daggett, J., having been of counsel in the cause, gave no opinion.New trial to be granted.