The plaintiff, in support of his title to the locus m quo, introduced a deed to him, executed by a committee of the town of Russell, purporting to convey the land therein described, including the locus, with the usual covenants of seizin and warranty. It was objected by the defendant’s counsel, that this deed was void, because it was made in pursuance of a sale at auction by one of the committee, who was not a licensed auctioneer; or, if it was not so made, then that the committee were not authorized to make the sale. These objections were overruled at the trial, and the deed was admitted in evidence; and we think that this ruling was well founded. This sale, strictly speaking, was not a sale at auction ; for the person to whom it was struck off refused to take a deed. But if the deed had been made to him, it would have been a valid sale, although the member of the committee, who sold the property at auction, were liable therefor to a penalty. The illegal act of the auctioneer, in selling or offering to sell property at auction, without being licensed, will not affect the conveyance to an innocent purchaser without knowledge that the auctioneer had not been licensed.

*24As to the other objection, that the conveyance was not made in pursuance of the authority given to the committee, we think the sale was substantially in pursuance of the vote of the town. The only object of directing the land to be sold at auction must have been to ascertain the highest price any purchaser would offer; and this was ascertained, and the property was struck off to the highest bidder. And it was immaterial whether the conveyance was afterwards made to him, or to some other person with his consent.

But, although we consider this deed to the plaintiff as a valid deed, yet nothing passed by it except the title of the town of Russell; and all the title they had was by an entry into the premises, claiming title thereto, and causing the same to be surveyed previously to their conveyance to the plaintiff. On the other hand, the defendant proved that he and Chauncey W. Morse, under whom he claimed title, had possession of the premises previously to any entry by the town of Russell ; and upon this evidence, the counsel for the defendant requested the court to instruct the jury that, if the defendant had shown a possession in himself or Chauncey W. Morse, of an earlier date than the plaintiff’s deed, that was sufficient to preclude the plaintiff from maintaining this action. The court declined so to instruct the jury, but instructed them that the action might be maintained, although the defendant, or the said Chauncey W. Morse, had committed acts of trespass on the premises, earlier than the entry and survey by the town of Russell. ,

These instructions, as it seems to us, had a tendency to mislead the jury, and to withdraw their attention from the real question of title upon which the case depends. The evidence on the part of the defendant had a tendency to Drove that he entered into the premises claiming title ; and if so, then such entry, although he had no valid title, and although the entry would be a trespass against the true owner, would, nevertheless, he sufficient to establish a legal possession against any one who should afterwards enter upon him without right or any previous possession.

*25It has been argued for the plaintiff, that the deed from the town of Russell to the plaintiff vested in him a good title against every person but the true owner; and that it could not be avoided by a stranger, who sets up no title but by acts of possession. Several authorities were cited in support of this position, but they entirely fail to support it. On the contrary, an opposite doctrine was laid down in the case of Slater v. Rawson, 6 Met. 439, and in other cases there cited. The doctrine is well settled, that a party may enter on land without title, and may acquire a title by possession, by acts which would not constitute a disseizin of the true owner; and that such a possessory title is valid against all persons who- cannot prove an elder and better title. Much too great stress is laid, by the plaintiff’s counsel, on the deed from the town. He contends that the deed is presumptive proof of a legal title in the town; and he relies on the case of Ward v. Fuller, 15 Pick. 187. It is, indeed, laid down in that case, by the learned judge who delivered the opinion of the court, that in the absence of other evidence, the deed itself raises a presumption that the grantor had sufficient seizin to enable him to convey, and also operates to vest the legal seizin in the grantee. This is true, undoubtedly, as to ancient deeds, such as were given in evidence in that case. Whether it is true, also, as to recent deeds, may be more doubtful. But it is not necessary to discuss that question in the present case ; for there is no doubt the town of Russell had a sufficient seizin to enable them to convey the premises to the plaintiff, as they had, before the conveyance, taken a survey of the land, claiming title, and that was a sufficient seizin and possession to enable them to pass their title to the plaintiff. Nothing, however, but their title, could pass thereby. The plaintiff, by entry under his deed, might acquire a legal seizin against all persons not having a prior title. And the plaintiff has no better title than the town of Russell had. If the defendant, therefore, had a prior possession, this action cannot be maintained. It is denied by the plaintiff that the defendant had any such possession, or that, if he had, it would avail him *26against the plaintiff, who claimed under a deed and entry and possession. Whether the defendant had a prior possession or not, was a question of fact for the jury ; and if he had such a possession, this action certainly cannot be maintained. We think, therefore, that the jury should have been so instructed, according to the request of the defendant’s counsel.

Another exception was taken, to the instructions, which appears to us to be well founded. The defendant claimed title under several deeds and locations of land by original proprietors, and contended that the descriptions in those deeds and locations included the mountain, or apart of the mountain, therein named. But the court instructed the jury that the description excluded the mountain, so far as it applied to the present case. This decision, we suppose, was founded on the well established rule of construction of deeds, that where the land conveyed is described by courses, distances and monuments, and they do not correspond, the monuments must govern and control the courses or distances, on the ground that the former are less liable to mistakes than the latter. But this, like other general rules of law, is not .without some exceptions ; as was decided in Davis v. Rainsford, 17 Mass. 210. In the description of the lands, in the deeds and locations in question, they are bounded partly “by the mountain,” or “ on the mountain,” or “the foot of the mountain.” These references we consider as too indefinite and uncertain to control the courses and distances, and other references, by which these lots are described. The foot of the mountain is the most definite reference. But the foot of a mountain may, in many cases, be uncertain ; the rise being so gradual and inconsiderable. The other references are still more loose and indefinite. A mountain lot may be described as bounding on all sides by the mountain. So, if a lot is described as beginning at known monuments, and extending, according to the courses and distances named, far up the side of a mountain, or to its summit, and is there bounded “ by the mountain,” or “ on the mountain,” there would be no necessary inconsistency in the description, so as tc render the construction doubtful.

*27In all deeds of conveyance of lands, the first rule of construction is, that they are to be construed according to the intention of the parties; and to ascertain that intention, the whole description of the land conveyed is to be considered, and so construed that all the parts of the description may correspond, if they may by any reasonable intendment. Whether, according to these rules, the defendant’s deeds would include or exclude the locus, we have not the means of deciding ; but, so far as we are able to judge, we consider the question as depending both on law and fact, and consequently it is to be submitted to a jury, under the direction of the court as to such rules of construction as may be found applicable. It seems important to ascertain which of the two plans, used at the trial, describes the lots truly. So it may be important to ascertain the location of other lots adjoining that claimed by the defendant. And these are questions of fact within the province of the jury alone to decide.

New trial granted.