Jonathan E. White et ux. versus Judah Loring, 24 Pick. 319

Morton J. delivered the judgment of the Court. Samuel Arnold and Samuel Arnold junior were once tenants in common of a tract of land, which was divided into two equal parts by the construction of a turnpike road through it. The easterly half Samuel Arnold conveyed by deed of quitclaim to Samuel Arnold junior, and a part of the westerly half he conveyed to Gideon L. Thayer, under whom the tenant claims, and whose estate, it is agreed, he has.

No written evidence of any conveyance of the westerly part to Samuel Arnold being found, the heirs of Samuel Arnold junior claim an undivided moiety of it ; and the question is, whether the evidence in the case was competent and sufficient to warrant the finding of the jury in favor of the tenant. Real estate can only be transferred by deeds duly executed, acknowledged, and recorded. But the existence and contents of grants, records, and all other written documents, may be proved not only by parol, but by circumstantial evidence.

And a deed, or any other legal mode of conveyance, may be presumed from longu possession and other circumstances, which can be accounted for only on the assumption of a conveyance. And notwithstanding the dictum in Holyoke v. Haskins, 5 Pick. 27, which, taken in connexion with the context, means no more than that a grant of land will not be presumed from a mere possession twenty years, it has repeatedly and recently been solemnly decided by this Court, that the presumption extends as well to corporeal, as incorporeal hereditaments. Clark v. Faunce, 4 Pick. 245 ; Melvin v.

Proprietors of Locks and Canals on Merrimack River, 16 Pick. 137 ; Same v. Same, 17 Pick. 255 ; Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241. Were it necessary to support these adjudications, we might, in addition to the authorities cited in the cases themselves, refer to Kingston-upon-Hull v. Horner, Cowp. 102 ; Fishar v. Prosser, ibid. 217 ; Hillary v. Waller, 12 Ves. 264 ; Van Dyck v. Fan Beuren, 1 Caines’s R. 89 ; Jackson v. M'Call, 10 Johns. R. 377 ; Schauber v. Jackson, 2 Wendell, 13 ; Farrar v. Merrill, 1 Greenleaf, 17 ; Prevost v. Gratz, 6 Wheaton, 481; Ricard v.

Williams, 7 Wheaton, 109 ; Bennett v. Neale, Wightw. 341. What effect, if any, our statutes of registry would have upon the operation of the doctrine of the presumption of conveyances, it is not necessary to consider, because an unrecorded deed is valid and effectual against the grantor and his heirs. [See Valentine v. Piper, 22 Pick. 85.] ■ The evidence of the declarations of Samuel Arnold junior, was, in our opinion, admissible. The declarations of the tenant in possession, adverse to his own interest, are always competent evidence against those claiming under him. 1 Stark. Evid. 70 ; 1 Phil.

Evid. (7th ed.) 258 ; Peaceable v. Watson, 4 Taunt. 16 ; Perigal v. Nicholson, Wightw. 63. The evidence was abundantly sufficient to justify the jury in presuming a conveyance from Samuel Arnold junior to Samuel Arnold.

The verbal agreement to divide ; the anxiety of Samuel Arnold junior to get the agreement executed by proper deeds ; his declaration, that his father had given a division deed and that the matter was settled ; the quitclaim by the father to the son of the easterly half, which is a usual and convenient mode of making partitions ; the purchase by the son, of shares in his father’s estate, including the westerly half of this land , the taking a deed by him of a share bounded on Thayer, under whom the tenant claims ; the inventory of this westerly part as the estate of the father ; the assignment of dower in it to the widow ; the lease of the estate by the administratrix of the father’s estate ; the credit to the estate, of the rent; the objections to the account by the son, without notice of the item of rent ; his extreme poverty and dependence on the charitable assistance of his friends for support; his utter insolvency for years before and at his death ; the knowledge of the son and his creditors of all these circumstances ; the entire omission of all of them to set up any claim to this estate, and the occupation and use of it for more than thirty years, exactly as it would have been occupied and used if conveyed to Samuel Arnold, form a combination of circumstances which irresistibly lead to the conclusion, and raise a violent presumption, that when the father executed a quitclaim deed to the son, of the easterly half, the son executed a corresponding one to the father, of the westerly half.

Judgment on the verdict.