The parcel of land of which the petitioner seeks to obtain partition is situate in Wenham and Beverly, contains about twenty acres, and is known as the “ Balch pasture.” It formerly belonged to John Dodge, who in his last will devised ten one-hundredths of it to each of his daughters, Mary and Jerusha, and sixteen one-hundredths of it to each of his children, Uzziel, Elzaphan, Mehitable, Lucy and Sarah. The petitioner claims to have acquired title to the whole of the shares of Uzziel, Elzaphan and Mehitable, and to one quarter part of the share of Sarah, which severally came to them under their father’s will, and thus to be seised, as tenant in common with the other owners, of fifty-two undivided one-hundredth parts of the premises.

In support of this title, the petitioner produced upon the trial deeds from said Elzaphan and Mehitable of their said shares, and of said Sarah of one quarter part of her said share, to the said Uzziel. And it was further shown by him that said Uzziel *551died intestate, and that the whole of his estate descended to and was inherited by his son Dr. Samuel Dodge, who afterwards died testate, having devised all his right and interest in the premises to his son Samuel Augustine Dodge. He then produced a quitclaim deed from said Samuel Augustine to himself, dated September 21, 1855, wherein and whereby the said Samuel A. released and quitclaimed the same to him.

Upon this and upon all the other evidence in the case, it was found by the court that the petitioner is entitled to have partition made of the premises, and that fifty-two one-hundredths thereof should be set out and assigned to him.

It is now objected that this conclusion was erroneous, and that, instead of entering judgment for partition, there should have been judgment that the petition be dismissed, because upon the facts reported it appears that, at the time when t.he said Samuel A. Dodge made and executed the deed to the petitioner, he was disseised of the premises, and therefore that the deed was inoperative and void, and consequently that the petitioner had shown no title whatever to the premises.

There is no doubt that a tenant in common of undivided real estate may be disseised, and that a conveyance by a disseisee is unlawful and void, and that the title to the estate will in such case, notwithstanding the deed, remain in the grantor. Lefavour v. Homan, 3 Allen, 354. Barry v. Adams, Ib. 493. Parker v. Proprietors of Locks and Canals, 3 Met. 91, 100. Brinley v. Whiting, 5 Pick. 348. Foster v. Abbot, 8 Met. 596. And the facts stated in the report certainly tend very strongly to show that said Samuel A. Dodge had long before been, and at the time when he made his quitclaim deed was, disseised of the premises. On the 2d of April 1836, Rebecca Dodge, as his guardian, sold sixteen one-hundredths of the premises as his estate to Jesse Sheldon, by a deed which was not recorded until March 2,1858. And it is expressly found that neither the said Rebecca nor the petitioner as his guardian, nor he himself after becoming of age, ever had possession of the premises, or claimed or received any of the profits thereof, or used or occupied any part of the same, up to the time of the making of his deed to *552the petitioner in September 1855. It further appears that on the 18th of January 1834 the said Elzaphan Dodge quitclaimed to Dudley Dodge “ the Balch pasture, lying in common with the heirs of John Dodge,” and that the said Mehitable Lang-maid on May 1,1843, quitclaimed one undivided sixth part of the same to said Dudley. It also further appears that the said Sarah Kimball died, and that all her interest in the premises, if any, descended to her son and sole heir, Edward L. Kimball, who afterwards on the first day of November 1853 conveyed to Richard P. Waters, one of the respondents, one undivided sixth part of the premises. And Dudley Dodge, by his deed of October 1,1845, conveyed twenty-eight seventy-fifths of the Balch pasture to Joshua H. Ward, who devised all his interest therein to Ward and Nichols, two others of the respondents. It also further appears that all these parties, viz : Paul Kimball, as the surviving husband of said Sarah, and afterwards the said Edward L. Kimball until his conveyance to the said Waters, the said Mehitable and Elzaphan until their respective deeds' to said Dudley, and afterwards the said Dudley, and the said Sheldon, claimed and received each of them a share or shares of the profits of said estate. But the premises have remained undivided, and the shares of those claiming interest and receiving profits have been indefinite and uncertain.

From all these facts and statements it clearly appears that, as to all the shares of said Uzziel, Elzaphan, Mehitable and Sarah, which they derived under the will of their father, and which constitute the share to which the petitioner claims to be entitled under the said deed of said Samuel A., they or then1 grantees were constantly in possession of the premises, claiming title thereto and receiving the income and profits thereof; and that said Samuel A. never after April 2, 1836, was in possession of any part of the premises, or received any rent, income or profit therefrom, or set up or pretended to have any claim or title thereto. Nor has the petitioner himself ever been in possession thereof, though he claims to hold under the deed of said Samuel A. as the only source and foundation of his title.

A stronger case than this, to show that the said Samuel A. *553Dodge, if he had any right or title in the premises, was disseised thereof, and consequently that bis deed to the petitioner was inoperative and void, it would certainly seem difficult to establish. But it is now contended that this objection to his title is not open to the respondents, because it was not taken and insisted upon at the trial. And although, upon the general conclusion and finding of the court upon the facts reported, the question is manifestly presented for our consideration, it is not stated, nor does it from any of the facts which were reported follow by a necessary implication, that it was relied upon as one of the grounds of defence to the petition. In this absence of proof, and in the doubt and uncertainty created by a want of fulness of statement on the subject, and whether this question was distinctly brought to the attention of the presiding judge and passed upon by him, we think the court should not come to any final determination upon the question of the disseisin of Samuel A. Dodge; but that a new trial should be granted in order that it may be more fully investigated, and the parties heard concerning it. For this purpose, a new trial must accordingly be ordered.

In- other respects, the proceedings upon the trial and the conclusions of the court appear to have been unobjectionable. In the construction given to the several deeds of said Elzaphan, Mehitable and Sarah to said Uzziel Dodge, and in the exclusion of the matters offered in evidence by the respondents Waters and Nichols, the several rulings appear to have been appropriate and correct, and the exceptions thereto should be overruled.

New trial granted.