The referee finds that the entire tract surveyed and divided into 117 lots by Hersey in 1774 is within the *Page 524 limits of the Masonian grant. For the purposes of the case, therefore, a good title in the proprietors to lot 100, including the part of it situated in the town of Eaton, must be taken as an established fact, whatever may be the historical or other evidence regarding the extent of their claim or the boundaries of the grant as finally settled. By the partition made by vote of the proprietors in 179g, Solley and March took a valid title in severalty to lot 100. Cornish v. Kenrick, Smith N.H. 270, 274; Coburn v. Ellenwood, 4 N.H. 99; Atkinson v. Bemis, 11 N.H. 44; Little v. Downing,37 N.H. 355. By virtue of the conveyances, numbered 1 to 10 inclusive, the plaintiff shows a clear title to thirteen sixteenths of one half the lot in common with the heirs of Amos Towle owning three sixteenths of one half, and the heirs of Solley owning the other one half. The land conveyed by these several deeds is described as a fractional part of "lot numbered 100 drawn to the right of Solley and March, "or as" lot numbered 100 in the Ossipee ranges." By either description the entire lot is designated as explicitly as it well can be. It was situated in an unbroken forest. It was known by number only, but as definitely and certainly by its number as one's homestead is known by that name. The statement that the lot was situated in Ossipee, Effingham, or Freedom was designed not to restrict the operation of the deed to the part of it lying in the town named, but to point out by way of additional description its supposed geographical location. It is as if one should convey his farm, lying partly in each of three towns, describing it as his homestead farm, and also as situated in one of them. The statement of the location, so far as it is inconsistent with the previous description, must be rejected as mistaken. If the land intended to be conveyed is sufficiently ascertained, it will pass, although its description is in some particulars erroneous. Greely v. Steele,2 N.H. 284; Lyman v. Loomis, 5 N.H. 408; Drew v. Drew, 28 N.H. 489; Holbrook v. Bowman, 62 N.H. 313.
The defendants do not claim under Moulton, and it is immaterial that his deed to Lord (No. 2) was not acknowledged. Montgomery v. Dorion,6 N.H. 250; Stevens v. Morse, 47 N.H. 532.
The plaintiff's title is not affected by the declarations of Towle, Kennett, and Harmon, that they claimed to own no land in Madison. Upon the questions of the character and extent of their possession and the boundaries of the lot, the declarations might be competent evidence, but they are not admissible to control or affect the legal construction of the deeds. Claremont v. Carlton, 2 N.H. 369, 372. There is no estoppel. No action was taken by reason of the declarations. The declarants' mistaken statements, that they had or claimed no title to land in Madison, would not preclude them or their grantees from afterwards asserting their title to its full extent against any one who had not acted on the faith of them. Parker v. Brown, 15 N.H. 176.
The plaintiff derives his title from the sovereign, and need not *Page 525 show actual possession in himself or in any one under whom he claims. Graves v. Amoskeag Co., 44 N.H. 462.
The defendants do not claim under the Masonian proprietors, but under the deed (No. 20) of Lary, collector of taxes to Richard Lary. Nothing passed by this deed. A compliance with the requirements of the statutes under which the sale for taxes was made is not shown, and, in the absence of evidence that the town records have been lost or destroyed, cannot be presumed. Brunswick v. McKean, 4 Me. 508, 510; Hathaway v. Clark, 5 Pick. 490; Waldron v. Tuttle, 3 N.H. 340, 344; Cahoon v. Coe, 57 N.H. 556.
Assuming that the land in dispute would pass under a conveyance of lot 184 in Madison, the several deeds in the defendants, chain had no operation except to give the grantees a color of title. But the only value or effect of color of title is to extend by construction an actual possession of a part of the land covered by the apparent title to the whole. Mere color of title in the absence of possession under it is worthless for any purpose. It confers no right against a mere wrong-doer. It is not the deed, but the possession under it, which gives the title. Minot v. Brooks, 16 N.H. 374,377; Hoag v. Wallace, 28 N.H. 647; Graves v. Amoskeag Co., 44 N.H. 462; Wells v. Iron Company, 48 N.H. 491; Bell v. Peabody, 63 N.H. 233.
Possession for any time, however short, is sufficient evidence of title against one who shows no better right. But to establish against the owner a title by possession, an open, visible, continuous, and exclusive adverse possession for the period of twenty years must be shown. Little v. Downing,37 N.H. 356. A possession of this character in the defendants, or in those from whom they derive their title, is not shown, or, indeed, claimed. The occasional cutting of a few timber trees on a wild lot, or such acts of ownership as were exercised by Jonathan Tucker, however long continued, do not alone constitute the visible, continuous, and exclusive occupation necessary to give title by possession. Hale v. Glidden, 10 N.H. 397, 402; Bailey v. Carleton, 12 N.H. 16, 17; Moore v. Hodgdon, 18 N.H. 144. During all the period of Tucker's cutting, the owners of the title derived from the state were by legal intendment in possession. They were not in fact ousted or excluded from the possession. There was no actual disseizin. Towle v. Ayer, 8 N.H. 67, 60. Tucker's acts were mere trespasses. It is not material that for the sake of the remedy the owners might have elected to treat them as a disseizin. Towle v. Ayer, 8 N.H. 61, 62.
As against a stranger, or one who has no right, a tenant in common of lands or chattels is entitled to the possession, not merely of the undivided part to which he makes a title, but to the whole. D' Wolf v. Harris, 4 Mason 515, 539; Hardy v. Johnson, 1 Wall. 371, 373. For this reason it is held in several jurisdictions that *Page 526 in ejectment a tenant in common may recover the entire property from one who shows no title. Coit v. Wells, 2 Vt. 318; Chandler v. Spear, 22 Vt. 388; Robinson v. Johnson, 36 Vt. 74; Smith v. Starkweather, 5 Day 210; Barrett v. French, 1 Conn. 364; Cross v. Robinson, 21 Conn. 386; Robinson v. Roberts, 31 Conn. 145; Collier v. Corbett, 15 Cal. 183; Touchard v. Crow, 20 Cal. 150, 162; Hardy v. Johnson, 1 Wall. 372; King v. Bullock, 9 Dana 41; Rabe v. Fyler, 10 S. M. 440; Sharon v. Davidson, 4 Nev. 416. So, also, in replevin. Sprague v. Clark, 41 Vt. 6; Cox v. Fay, 54 Vt. 416; Chaffee v. Harrington, 60 Vt. 718. It is not necessary to inquire whether such is the law of this state. The bill is not brought to obtain possession of the land. It alleges seizin and possession in the plaintiff, and prays that the boundaries may be established. The defendants by their answers deny the plaintiff's seizin and possession, and say that the defendant Miller is also long has been the owner of the land; but they show in his no title, no actual possession, and no right to the possession as against either the plaintiff or his co-tenants. The plaintiff establishes a legal title to an undivided part, possession, and, as against the defendants, the right to the possession of the whole. This is sufficient, so far as title is concerned, to enable the plaintiff to maintain the bill.
This result renders it unnecessary to determine whether lot 100, or any portion of it, would pass under the description contained in the deeds numbered 11 to 31.
The bill was filed December 3, 1867. It assumes that there is no controversy between the parties respecting the title to the land. It alleges that, by lapse of time, by reason of a. mistake of the original grantor in respect to the town line, and by the defendants' cutting down and removing line trees marked as monuments, the boundary line between the plaintiff's land and the adjoining land of the defendant Miller has become confused, and prays that it may be established. It does not allege fraud on the part of the defendants, that the line cannot be ascertained without the assistance of equity, or that the rights of anybody except those of the parties to the suit are affected. In short, no ground for equitable jurisdiction is suggested, unless the statement that the boundary line has become more or less uncertain and difficult to find constitutes such ground. 1 Sto. Eq. Jur., ss. 615-622. The defendants' answers, filed early in 1868, aver that the legal title to the part of lot 100 which lies in Madison is in the defendant Miller, and deny the plaintiff's allegations in respect to the confusion of boundaries. These were the only issues tried before the referee, who filed his report in April, 1878. The referee finds that by reason of the removal of marked trees, and other causes, the boundary line between the part of lot 100 lying in Madison and the defendants' adjoining land is, as alleged by the plaintiff, difficult to trace, but that it can be determined to the satisfaction of a *Page 527 referee or jury. The question of jurisdiction in equity is as distinctly raised upon the face of the bill as it is upon the report of the referee. The defendants might have taken the objection to the jurisdiction by demurrer to the bill. Instead of doing so, they elected to join issue upon the facts. They have had a full hearing upon them without objection on their part to the form of the proceeding. They chose to contest the merits, and take their chance of winning. After nearly sixteen years of litigation they are defeated. It would be a practical denial of justice to the plaintiff to permit them now to turn him out of court upon this objection. All the facts upon which the rights of the parties depend have been fully tried and determined. It does not appear that in this form of proceeding the defendants have lost any advantage which they would have had in an action of trespass or in a writ of entry Under these circumstances, if for any reason the bill could not be maintained, the plaintiff would be permitted to amend by filing a declaration at law, and take judgment thereon without any further hearing or trial.
Motion for a rehearing denied.
STANLEY, J., did not sit: the others concurred.