delivered the opinion of the Court, as follows:
The respondent in this case pleads sole seisin in himself of the lands, whereof partition is prayed, upon a traverse of which, issue has been joined and a verdict having been returned for the petitioner, under the direction of the judge who presided at the trial, a motion has been made to set aside the verdict and to grant a new trial, on account of a misdirection of the judge in a matter of law.
The determination of the cause will depend upon the question whether, at the time of the execution of the release from Elias Perkins, upon which the respondent relies, Perkins was so seised of the moiety claimed by the petitioner, as that his title thereto could, consistently with the rules of law, pass to the respondent.
It is insisted that although the deed executed by the attorney of Perkins to Jonathan Parker and to the respondent, in December 1830, was inoperative to convey the estate of Perkins, it not having been executed in the manuer required by law, yet that Parker having entered under color of that title, and thenceforward claiming the land described therein as his own, is to be considered as holding by disseisin. We have not deemed it necessary to consider how far this posilion is sustained by the facts, inasmuch as we are satisfied that the levy of the petitioner’s execution upon the estate' in possession of and claimed by Parker put the petitioner into the legal seisin of the laud, of which Perkins would therefore, by the same act, be divested. The case of Langdon v. Potter 3 Mass. 215, and of the Ken. Proprietors v. Laboree 2 Greenl. 215 are authorities to this point. It is true that Perkins might at any time, within the period limited by law, by an entry into the land, put an end to the seisin of the petitioner, and thus reinstate himself in the possession as well as the title, so as to be in a condition to pass both to a third person ; yet until this is done the law will not permit him to convey land continuing in the seisin of another. From the time of the levy the statute of limitations begins to run for the protection of the title of the petitioners, which may, by lapse of time, become indefeasable; unless it is seasonably vacated by peaceable entry. *20or by judgment of law. It results that the petitioner, being legally seised by his levy, the right alone remained to Perkins,which he could not by law convey to the respondent, He could not therefore be sole seised, as he has alleged in his plea, and the jury having been instructed to this effect, there must be
Judgment on the verdict.