The general instructions given to the jury in reference to the acts necessary to constitute such a reentry upon the premises, after he had been disseised thereof, as would enable Foster to make a valid and effectual conveyance by delivery of a deed to the grantor in another place, appear to have been correct and unobjectionable. But when the presiding iudge was specially asked to rule that, if the jury should find that Foster went upon the land in dispute with the plaintiff, for the purpose of pointing it out and selling it to him, and when thus on the land claimed it as his, that would constitute a sufficient reentry to enable him to make a valid conveyance of it by delivery of the deed after he had gone from the premises, he erred in determining that it could not be adopted for the reason *519that there was no evidence in the case to found such ruling upon. This determination of the court appears to have been predicated upon the single fact that the plaintiff, who had been examined as a witness on the trial, did not state, in giving his testimony, that Foster, while on the premises, made any claim to the ownership thereof.
But a declaration to that effect is not the only mode in which such a claim might have been asserted. It was not necessary that it should be made by any direct and positive assertion of right, or in any words spoken; his acts and conduct may have been equally significant and decisive of his purpose. And upon recurring to the facts stated in the bill of exceptions, we think it is very apparent that there was some evidence, the effect of which should have been left to the consideration of the jury, to show that a claim of ownership was set up by Foster, while he was on the land, by which he intended to become repossessed of it. Before going there a negotiation had been commenced between the parties respecting the sale of the whole of the six acre lot, including the premises in controversy, by Foster to the plaintiff, in which Foster proposed to convey the entire tract, free and clear of all incumbrances, in part payment for a house which he was about purchasing of the plaintiff. It was in pursuance of this negotiation that they went together upon the lot, and upon every half acre of the two and a half acres in dispute, to ascertain the quantity and quality of the wood growing there. This was manifestly done with a view to the consummation of an anticipated bargain between them, and a consequent conveyance of the estate. It should have been submitted to the jury to determine whether the act of going upon the land with that design and purpose, its exhibition to an expected purchaser, considered in connection with the offer and professed readiness of Foster to make a conveyance of it by deed with warranty that it was free and clear of all incumbrances, did not constitute a direct claim of ownership in himself while he was there, as distinct and intelligible as if it had been proclaimed in the most explicit .anguage.
What would, or should, have been the conclusion of the jury *520upon the evidence submitted to them, it is unnecessary at' this time to express any opinion. It is sufficient that there was some evidence tending to show that fact, upon, which it was competent for them to exercise their own judgment, and to deduce from it such inferences and conclusions as they should think it would fairly and justly warrant. The ruling asked for having been withheld on the precise and explicit ground, that the court perceived in the testimony no evidence upon which it could be founded, Was therefore erroneous. And although the presiding judge added to his refusal to adopt that ruling, that “ he should instruct the jury as before; ” and he had in fact instructed them that, if Foster, when be went upon the land with the plaintiff, intended to reenter and take possession of the premises as the owner thereof, such entry and these acts would be sufficient to give validity to the deed elsewhere delivered; yet his clearly expressed opinion, that there was no evidence upon which to found the proposed ruling, because the plaintiff had not testified that Foster, when on the land, claimed it as his own, substantially took away from the plaintiff all the benefit and advantage of the previous instructions. The direct tendency of the refusal for the reason assigned was to prevent the jury from giving due weight and effect to the acts and circumstances which had been proved for that purpose, or to induce the understanding and belief on their part, that in the opinion of the court, as matter of law, there was no evidence in the case upon which it was competent for them to find that a claim of ownership was made by Foster on the land, unless the plaintiff had testified to his direct declaration to that effect. As the desired ruling embodied an accurate statement of the law, the correctness of which has not been contested, and was material to the plaintiff, and as the refusal to adopt it was predicated upon the erroneous assumption that there was no evidence in the case to show that Foster, when on the land, made claim of ownership, the exceptions taken by the plaintiff must be sustained and a new trial granted. Exceptions sustained.