Lucy Knox and Others versus Alexander Kellock.
In a writ of right, wherein the demandants counted upon the seisin of their ancestor, the tenant proved that the ancestor had parted with the land in his lifetime. But it appearing that such ancestor was disseised at the time of his conveyance, and that therefore nothing passed by his deed, and the action being avowed to be brought for the use of the grantees, the demandants recovered.
This was a writ of right, in which the demandants counted on the seisin of Francis Waldo, within sixty years from the 31st of December, 1811, being the date of the writ, and a descent to them from him as their ancestor.
The cause was tried on the general issue, before Thatcher, J., at the last September term in this county, when it was proved, on the part of. the demandants, that Samuel Waldo, Esq., died seised of a tract of land called Middle Neck, of which the demanded premises are a part, in the year 1759; that the said Francis Waldo, one of the children and heirs of the said Samuel, in the year 1768, received a conveyance from the other heirs of the said tract, and became seised by virtue of the said conveyance. The pedigree of the demandants, as derived from the said Francis, was admitted as alleged by them in the count.
On the part of the tenant, it was proved that, in the year 1764, John Kellock, father of the tenant, entered and took possession of *174the demanded premises, and held the same until the year 1803, when he died seised thereof, leaving the tenant in possession, claiming the same as son and heir of his father. And, to show the title out of the ancestor of the demandants, the tenant * offered in evidence, although objected to by the demandants, two deeds from the said Francis Waldo, one dated July 1, 1771, to Alexander Wedderburn, conveying an undivided fourth part of said Middle Neck, and the other dated September 9, ] 770, to John Skinner and Richard Jackson, conveying an undivided moiety of the same tract; and it was admitted that the late General Knox was seised of the remaining fourth part. The said deeds were duly executed, acknowledged, and recorded.
On this evidence it was contended, for the tenant, that a title to the whole of the demanded premises was shown to be out of the ancestor of the demandants, and that no estate in the premises descended to them from him ; and that the jury ought to be instructed to find a verdict for the tenant.
On the part of the demandants, it was contended that, inasmuch as the said Francis Waldo, at the time of executing the said deeds to Wedderburn, Skinner, and Jackson, was disseised by the said John Kellock, as aforesaid, nothing passed by said deeds; and as the action was brought for the benefit of the said grantees, the demand-ants were well entitled to recover.
The judge instructed the jury to find for the demandants, and a verdict being so returned, the tenant filed exceptions to the said instruction, and moved for a new trial on that ground.
Orr, for the tenant.
In a writ of right, the seisin of the ancestor is material; and if disproved, this is fatal to the demandants’ claim. For the tenant, it is sufficient to show that their ancestor in his lifetime parted with the fee to a stranger; because such evidence would falsify the count in a material point. In that case, there could be no descent to the heir, and the claim of the demand ants must fail.
In the case at bar, Francis Waldo, the demandants’ ancestor, conveyed the demanded premises to Wedderburn and others ; there could, therefore, be no descent to the heirs of Waldo. It is not for these heirs to allege that nothing passed by the deeds of their ancestor, nor * is it necessary that the tenant should derive a title from Wedderburn. After the lapse of more than forty years, it is to be presumed that the tenant’s an cestor was confirmed in the estate by Wedderburn.
It does not appear that Waldo was ever disturbed upon the coy enants in his deed to Wedderburn. Nor have his heirs suffered by *175them, and they cannot now be held to answer. They have, therefore, no interest whatever in the demanded premises.
It is suggested that the action is instituted by the demandants for the benefit of the grantees of their ancestor ; but nothing appears in the case to authorize the suggestion. It is merely assumed.
A declaration on the demandants’ own right is essentially different from one in right of his ancestor. In the case of Wolcott & Al. vs. Knight Al,
it is held that the tenant may plead a deed of the demandant to a stranger, in bar of a writ of entry on his own seisin ; and that the demandant may avoid the bar by replying that nothing passed by the deed. But it is not in the mouth of the heir to allege that nothing passed by his ancestor’s deed : he cannot maintain a writ of right for the imaginary benefit of others, who have made no claim, and who have no perceptible interest in the suit. The demandant must derive a right from the person whom he alleges to have been seised.
The seisin of the ancestor, as alleged, must be certain. The case of Barre vs. Reynold, cited in Litt. § 514, is in point, where justice Herle is represented to have said to the grand assize, “ If you find the ancestor of John [the demandant] was not seised in the time that the demandant hath pleaded, you shall inquire no further upon the right; but if you find that he was seised, then you shall inquire further,” &c.
The issue, in the case at bar, is on the mere right, in which every thing may be given in evidence but collateral warranty.
Mellen for the demandants.