It is unnecessary to discuss the title of Wells, in order to ascertain its validity. Admitting it to be unquestionable, it is a legal pre-requisite to his having become an inhabitant of Reading, that he should have been possessed in fee of a real estate in that town, during his continuance therein. Stat. p. 391. ed 1808. By this expression, something more is intended, than that Wells should have the constructive possession of land in Reading. This he would have had, if to the land in question he had title, and no person was in the occupation of it, although he had never passed the bounds of Newtown. The possession mentioned in the statute, means the actual occupation of the land; and hence it becomes the sole enquiry, whether in this manner Wells ever was possessed.

Two propositions I consider to be incontrovertibly clear; that is, that Peck, by his tenant Wheeler, had the possession of the land in question; and that Wells never had the actual possession. Under claim of title, by virtue of the deed from Wells, Peck, while he was his overseer, took possession of the land, and leased it to Wheeler. Undoubtedly, if the title was in Wells, Peck was a disseisor. Disseisin is a wrongful putting out of him that is seised of the freehold. Co. Litt. 277. a. 3 Black. Comm. 169. And what can be higher evidence of an ouster, than taking the actual possession of land, under claim or colour of title? If Peck had been the guardian of Wells, or tenant in common with him, and had entered on the premises, with the intention of asserting a title in himself, he *258would have been a disseisor; and the fact of his intention might be ascertained from his express declarations, or from circumstances leading to the inference, or from his subsequent acts. Jackson d. Youngs & al. v. Vredenberg, 1 Johns. Rep. 159. Smith d. Teller & al. v. Burtis & Woodward, 9 Johns. Rep. 174. Co. Litt. 374. a. But as overseer, Peck had no right to enter on the land; and his unwarrantably taking the possession, under claim and colour of title, is the most irrefragable evidence of a disseisin. The fact of his being overseer, in the case, makes no difference; for this neither incapacitated him from the assertion of his individual rights, nor disqualified him from the perpetration of wrong.

That Wells never actually possessed the land, is apparent from the preceding facts, as well as from the insufficient ground, by which it is attempted to be established. He never entered on the land, that was in the actual possession of Wheeler, nor even into the house standing on a part of it, asserting any claim beyond his actual occupation. This is conclusive on the point in question. Of the house Wells took the possession, with the understanding that he was not to interfere with the actual possession of Wheeler; and he did not interfere, either by an actual entry, or even by the advancement of a claim of right. He voluntarily relinquished the possession, and not improbably believed, that the title to the land was vested in Peck. If the entry be special, said Lord Coke (1 Inst. 15. b.) "viz. that he enter only into that parcel, and into no more, there it reduceth that parcel only, into actual possession.”

The charge to the jury, in my opinion, was precisely correct; and no new trial ought to be granted.

New trial not to be granted