DOE ex dem. SAMUEL MERCER vs. TULLY HALSTEAD et al., 1 Busb. 311

Nash, C. J. The first objection to the plaintiff’s recovery stated in the bill of exceptions is, that the defendant, at the time of the conveyance from David Wilson to the lessor of the plaintiff, was in the adverse possession of the premises claimed in the declaration. This objection is fatal to the action. The lessor derived tide under David Wilson by deed, bearing date in 1851. In 1845, Mary Wilson, who was the wife of David Wilson, conveyed the premises to _ the defendant, who went into possession and cultivated and cleared, and was in possession in 1851, claiming it as his own.

Whether the deed to the defendant actually did convey the land to Halstead, is not material to be inquired into. He was in possession under it, claiming adversely to all the world. At the time then that David Wilson sold and conveyed the land to the lessor of the plaintiff, he had but a right of entry* which he could not convey so as to enable his assighee to sue in his own name. It cannot be necessary to cite authority to show this. Upon this exception the Court affinns the judgment below. We further say that his Honor committed no error in refusing to instruct the jury as required.

There was evidence upon the 'question of fraud, and it was properly left to the jury for their decision. Per Curiam. Judgment affirmed.