CHARLES H. ATHERTON versus STEPHEN JOHNSON

The tenant is in possession of the premises, and consequently the demandant cannot recover them without evidence of a better title in himself.

In A. D. 1761, the title is admitted to have been in the town of Dunbarton. The demandant contends, that, after-wards, the town either conveyed their title to Wm. Stark, under whose heirs the demandant claims; or that, after-wards, those heirs acquired a title to the premises by adverse possession.

As to the first point, we think, that the proposition by Wm. Stark to exchange lot No. 12, for these premises, and the acceptance of that proposition by the town, and the confirmation of it by the Masonian proprietors, did not change the title. These acts amounted merely to an execu-tory agreement to exchange and not to an exchange itself. 2 John. Cases 223.—7 John. Rep. 285.—10 John. Rep. 246.—9 John. Rep. 35, 330.—13 John. 235.

Indeed, when the town entered into the agreement, Wm. Stark had not the power to make the exchange; he did not own lot No. 12 till some years after; and no deeds appear ever to have been executed by either party of either lot.

It is not necessary to decide, whether ancient proprietors of land in New-England cannot, by express vote, without any deed, either pass a title to the land, or estop themselves afterwards to claim one. 3 Mass. Rep. 352, Adams vs. Frothingham.—12 ditto 415, Springfield vs. Millar.—Proprietors of Dunstable vs. Blood, (Hills, ss. Apr. 1804.) Because the vote in this case was on the sole condition, that lot No. 12,should be conveyed to them by Wm. Slark^ “ as a school lot foreverand hence, if the vote was intended as any thing more than a treaty for an exchange, it would not affect the title till the condition precedent was fulfilled. It ought to be remarked, however, that wc discover some facts in this case, which might warrant a jury in presuming, that a conveyance was. in fact made by Wm. Stark to the town of lot No. 12, and has since been lost by time or accident; but, on the other hand, some facts appear of a contradictory character, and, on a new trial, it will be the province of the jury to weigh them as they bear upon this point.

In respect to the second point, the length and character of the possession by Wm. Stark, by his widow, and by his heirs, must all be determined before we can decide, whether any tide was acquired under it.

Thus, if the possession and entry of Wm. Stark were not adverse, but by the consent of the town till the executory agreement should be executed, it amounted to a mere nullity, and neither the state, his widow, nor his heirs, could profit by it, 2 D. & E. 53.—Justin. Inst. b. 2, t. 6, s. 2.—3 John. Cases 119.—13 Mass. Rep. 243, and authorities passim.

Thus, too, if the possession, after his flight and death, were not adverse, the same result would follow. Whether, during either period^ it were or were not adverse, is a question of fact.(I)

If the possession after his death were adverse, it must then be determined by the jury, whether it were continued by the widow in her own right, or in behalf of her children, or as a joint disseisor with them. Under the circumstances preceding the death of Stark, a strong presumption would arise, that she continued the possession as guardian in socage to their minor children. 1 John. Rep. 183.—5 John. Rep. 66.—7 John. 157.—1 John. Cases 219.—3 Wils. 516.

But many circumstances appear in this case to rebut that presumption, and being in our opinion competent, they must be submitted to a jury.

If the confiscation act should be found hereafter to affect the title of either party, as is anticipated by counsel, we would now apprize them, that it is by us considered a valid act. It was passed before the formation of any of our constitutions, and was specially excepted from the operation of our present one.(2) Similar acts, too, passed in other states during the great conflict for our independence, have uniformly been held valid. Day's Rep. 4.—2 John. Cases 237.—4 Mass. Rep. 304, M'Niel vs. Bright et al.— 15 Mass. Rep. *3544.—5 Crunch 353 note.—6 Crunch 286.—Vattel, b. 4, ch. 2, s, 21.

Should the jury find, that the town neVcr parted with their paper title to the premises, and that the possession was in behalf of the heirs and adverse, a question of some nicety will arise as to the length of possession necessary to bar the title of a public corporation. Bac. Ab. “Prerogative” — Co. Litt. 41, 6, 57, 118, a.-10 Coke 112.—10 Mass. Rep. 71, Arundel vs. M'Culloch *

As the tenant, also, is now in possession, virtually claiming under the town, as well as the widow, a question may arise, whether, having the paper title and present possession, he can be disturbed by one, whose title depends wholly on a bar occasioned by the statute of limitations. Runnington Ej. 58, 900.—Cowp. 216.—Salk. 421, Stokes vs. Berry.—5 Cranch 358.—13 John. 229.

The statute of limitations generally avails only as a de-fence. Where a demandant has recovered upon evidence of possession alone, it has generally been in cases where his possession Was earlier than that of the tenant, and where the tenant did not show a perfect paper title in himself. Ld. Ray. 741.—Salk. 421.—1 Mod. 287.-2 Saund. 112, Allen vs. Rivington.—2 John. 22, 24.—4 John. 202, 211, 313.—3 John. 388.-6 John. 218.—10 John. 335, 355.-3 Wheaton 224, note.—4 Taunt. 547.—16 John. 314. On the* contrary, a possession may have been so long, jand under sucb circumstances, as to warrant a jury in presuming an actual conveyance from him, who otherwise appears to have the paper title; and when that presumption can reasonably be made in favor of a demandant, there seems tobe no well founded objection to a recovery by him against a tenant, who has recently ousted him, and who formerly may have had the paper title. 6 D. & E. 554, The King vs. the inhab. of Betterfield.—Strange 609.—Burr. Sett. Cases 450, Cold Ashton vs. Wood Chester.—10 John. Rep. 377.—3 John. Ca. 109.— Cowp. 100, Mayor of Hull vs. Horner;—214, Eldridge vs. Knott.—12 Coke. 5, Bedle vs. Beard.— 3 Maul. & Selw. 24.—14 Mass. Rep. 55.—12 ditto 225.

On these last questions, we would not be understood to offer any opinion; but as some of them may arise on another trial, we merely invite the attention of the counsel to their consideration.