dissenting. I think the court below erred in holding that the presumption of the title arising from a conveyance by a grantor in possession can avail to overcome proof of paper title in some one else. Every plaintiff in ejectment must recover on his own title, and it is a complete defence to show title in a third person. I do not think that when title is once shown by a regular conveyance derived *225from government to have vested in any one, the law can ever raise a presumption that he has parted with that title, until there is proof of some direct action by him inconsistent with title, or else such a long possession as mSS. prima facie toll his right of entry.
It could not be claimed for a moment that if Eiley or one of his heirs had been plaintiff here, the fact that Gallagher was in possession six or seven years before suit, and conveyed to Horr or his grantors, would put such claimant to proof that he or his ancestor had never parted with the government title. No possession proved in this case goes back of Gallagher, and there is nothing whatever to show that Hoyt* or his successors in the chain before Gallagher ever had possession at all. I cannot see how a presumption that could not avail against Eiley as a plaintiff can avail against his title wherever it may be.
The rule which allows a primeo facie presumption of right in a possessor is the purest fiction, based entirely on the policy of not assuming a person to be a trespasser. I do not think there is authority for maintaining it against any positive proof of title, until it has time enough behind it to actually or presumptively bar that title. The case of Lull v. Davis 1 Mich. 77, seems to me to decide this very clearly, and the case of Gamble v. Horr is not opposed to it, as there no paper title was shown against that derived from the possessory source, and there was privity of title among some of the parties, although not relied on in the decision.
I cannot but think that since the action of ejectment has ceased to be possessory merely, and has become a substitute for the action of right, the extension of presumption from possession to cover an estate in fee-simple is a dangerous one at best, although there is reason in allowing it to support a possessory claim. Eut to allow so slender a foundation to support a presumption that the owner of a complete paper *226title has parted with it to the party who was formerly in possession, or parted with it at all, when such possession is not ancient, will greatly endanger titles, and encourage trespassers. In a country like this there must always be much non-resident land, and if owners can be put on the defensive, and compelled to prove a negative whenever any one chooses to enter their lands and convey to some one else, the results will not be favorable to honesty or safety.
I think the judgment should be reversed.
Hoyt conveyed the premises in suit to John Gallagher, and John Gallagher conveyed ^.to William Gallagher, who sold to Roswell G. Horr. Horr sold to John Gamble, taking back a mortgage which he assigned to Rollin A. Horr, the plaintiff in this action.