Argument for Defendant in Error. 87; Union Savings Bank v. Taber, 13 R. I. 683; United States v. Dickson, 15 Pet. 141; Mowry v. Providence, 10 R. I. 52; Ewing v. Burnet, 11 Pet. 41; Sailor v. Hertzogg, 10 Penn. St. 296; Farrar v. Fessenden, 39 N. H. 268; Little v. Downing, 37 N. H. 355; Webb v. Richardson, 42 Vt. 465, 474; Paine v. Hutchins, 49 Vt. 314; St. Louis Public Schools v. Risley's Heirs, 40 Missouri, 356, 370; Davis v. Easley, 13 Ill. 192; Elwell v. Hinckley, 138 Mass. 225; Glascock v. Hughes, 55 Texas, 461; Ricard v. Williams, 7 Wheat. 59, 105; Cheney v. Watkins, 1 Harr. & Johns. 527 [S. C. 2 Am. Dec. 530]; Draper v. Shoot, 25 Missouri, 197 [S. C. 69 Am. Dec. 462]; Tingley v. Providence, 8 R. I. 493; McClung v. Ross, 5 Wheat. 116; Campbell v. Point Street Iron Works, 12 R. I. 452; Burdick v. Burdick, 15 R. I. 574. Mr. Livingston Scott and Mr. Elisha C. Mowry (Mr. James C. Collins was with them on the brief) for defendant in error cited, to the points decided by the court: Dwyer v. Dunbar, 5 Wall. 318; Burrell v. State, 18 Texas, 713-733; Rivière v. McCormick, 14 La. Ann. 139; Laber v. Cooper, 7 Wall. 565; Jackson v. Haviland, 13 Johns. 229; Hamet v. Dundass, 4 Penn. St. 178; Taylor's Devisees v. Burnside, 1 Gratt. 165, 211; Jackson v. Myers, 3 Johns. 383, 392, 393 [S. C. 3 Am. Dec. 504]; Ewing v. Burnet, 1 McLean, 266; Sorber v. Willing, 10 Watts, 141; Hockenbury v. Snyder, 2 W. & S. 240; Cornelius v. Giberson, 1 Dutcher, 1; Reed v. Field, 15 Vt. 672; Little v. Megquier, 2 Greenl. 176; Clarke v. Cross, 2 R. I. 440; Hurst v. McNeil, 1 Wash. C. C. 70; Ricard v. Williams, 7 Wheat. 59, 108; Anonymous, 1 Salk. 246; Barr v. Gratz, 1 Wheat. 213; Smith v. Burtis, 6 Johns. 197 [S. C. 5 Am. Dec. 218]; Codman v. Winslow, 10 Mass. 146; Brimmer v. Proprietors of Long Wharf, 5 Pick. 131; Henderson v. Griffin, 5 Pet. 151; Holtzapple v. Phillburn, 4 Wash. C. C. 356; O'Hara v: Richardson, 46 Penn. St. 385; Altemas v. Campbell, 9 Watts, 28; [S. C. 34 Am. Dec. 494]; Burrows v. Gallup, 32 Conn. 493; Peabody v. Hewitt, 52 Maine, 33 [S. C. 83 Am. Dec. 486]; Means v. Welles, 12 Met. (Mass.) 356; Brickett v. Spofford, 14 Gray, 514; Rogers v. Benlow, 10 S. & R. 306; Robison v. Swett, 3 Greenl. 316. Opinion of the Court. MR. JUSTICE FIELD delivered the opinion of the court. This is an action of ejectment to recover possession of twenty-seven twenty-eighths undivided parts of a tract of land, containing about fourteen acres, situated in the town of Lincoln, formerly Smithfield, in the state of Rhode Island. The plaintiff, a citizen of Connecticut, sues the defendants, citizens of Rhode Island, in his own right and as trustee for others. The declaration contains several counts, all of which except two are withdrawn. In these the plaintiff alleges that on the 25th of October, 1874, he was "seized and possessed in his demense as of fee in his own right and as trustee" of twentyseven twenty-eighths undivided parts of the tract of land which is described, and that the defendants on that day and year, with force and arms, entered thereon and ejected him. therefrom, and have ever since withheld the possession, to his damage of one thousand dollars. The two counts differ merely in the description of some of the boundary lines of the tract. The defendants pleaded the general issue and twenty years' possession under the statute of possessions. Upon these pleas issues were joined and the case was tried, the parties stipulating that the plea of the statute should be held to apply to any period or periods of twenty years that could be covered by any other like plea that might have been filed, and that either party might offer any evidence and rely upon any matters that would be admissible under such plea or pleas, and any proper replications or other proceedings thereon. The case was tried three times, resulting the first time in a verdict for the defendants, and at the other times in a verdict for the plaintiff. The judgment on the last verdict is brought before us for review by the defendants on a writ of error. Numerous exceptions were taken in the progress of the trial to the rulings of the court in the admission and rejection of evidence, and to the instructions given and refused to the jury. But the conclusions we have reached with respect to the instructions given and refused as to the presumption of a deed to the ancestors in title of the defendants, render it unnecessary to consider the others. Opinion of the Court. It appears from the evidence at the trial that the land in controversy was the westerly part of a tract of 334 acres, belonging, in 1750, to one James Reed, and which, by early conveyances, became divided into three parcels, one containing 22 acres, one 5 acres, and the third 6 acres, as shown by a diagram submitted, by consent of parties, to the jury, of which the following is à reduced copy: EBENEZER JENCKS. WEST SHORE OF EZEKIEL FULLER. 5 ACRE LOT. ABIGAIL 6 ACRE LOT. BLACKSTONE RIVER. ICHABOD JENCKS. Opinion of the Court. A turnpike, running through the tract northerly and southerly, was opened in 1816. The 221-acre parcel was conveyed. to Francis Richardson, of Attleboro, Massachusetts, by deed dated April 10, 1750. The land in controversy is a portion of this parcel lying west of the turnpike. The 5-acre parcel was conveyed to Ezekiel Fuller by deed dated November 17, 1750. The 6-acre parcel was conveyed to Abigail Fuller, wife of Ezekiel, and daughter of Francis Richardson, by deed dated January 21, 1756. The plaintiff claims to derive title under the will of Francis Richardson dated May 26, 1749, and the codicil thereof dated August 10, 1750, which were admitted to probate in Massachusetts, January 19, 1756. A copy of the will and codicil, and of the Massachusetts probate, was produced and given in evidence, together with a certificate of their having been filed and recorded in the probate office in Lincoln on the 27th of August, 1881. It does not appear that there was any direct evidence that Francis Richardson was seized of the 221-acre parcel at the time of his death. The presumption, in the absence of any opposing circumstances, is undoubtedly that, being the owner at the date of the codicil, August 10, 1750, he continued such owner up to the time of his death, which occurred some years afterwards. Whether sufficient opposing circumstances to rebut this presumption are found in the absence of all claim to the land for three quarters of a century by the devisee or her husband, or her heirs, and the continued claim of ownership by the ancestors in title of the defendants during that period, is a question to be hereafter considered. It is stated in the record that there was evidence tending to show that Abigail Fuller, the devisee, and her husband entered into possession of the property devised under the will and codicil, but what that evidence was does not appear. Abigail died prior to 1766, leaving her husband surviving her. He left Smithfield sometime in 1761 "for parts unknown." It appears also that in a deed executed by him on the 11th of April, 1761, of the 20-acre lot designated on the diagram, he recited that such lot was bounded on the north by "his former land." Opinion of the Court. With the exception of the evidence tending to show that the devisee and her husband entered into possession of the property devised, and the reference by the husband in his deed to the tract as his former land, there was nothing to show that any claim of right or title to the land had been made by them, or by their heirs, for nearly three quarters of a century, either by the exercise of acts of ownership over it, such as its occupation or the use of its products, or by leasing or selling it, or by the payment of taxes or in any other way. And for over forty years after the lapse of the three quarters of a century, the only claim of title made by the heirs of the devisee to any portion of the 221-acre lot consisted in the fact that in 1835 they brought an action against certain persons with whom the defendants were not in privity of title or ancestry, for the recovery of another portion of the 221-acre parcel, which action was discontinued in 1838 on account of the poverty and pecuniary inability of the heirs to carry it on; and in the fact that, at varying intervals between 1826 and 1857 (not 1858, as stated in one part of the record) they had been in the habit, under such claim, of cutting wood thereon openly for family use, and the manufacture of baskets, in which business some of them were engaged, and carrying it to their homes; and that on three occasions, once in 1840, once in 1845, and once in 1852, some of them, in contemplation of taking legal proceedings to establish their title, had gone around and upon the land and pointed out its boundaries. When Ezekiel Fuller departed from Smithfield in 1761, he left two children, Francis and Abigail, without means of support, and at a meeting of the town council in September following, proceedings were taken to provide for them. In a resolution reciting that "Ezekiel is gone, we know not where;" that his children were then and likely to be chargeable to the town, that little or nothing of Ezekiel's estate was to be found to support them, but that it was assumed there was some estate belonging to him, a person was appointed to make proper inquiry and search for it, "to know what land there is belonging to the family of said Ezekiel and secure the same for the support of the children." It would seem that the person, thus |