The opinion of the Court was delivered by

The plaintiffs claim under a deed to Peirce & M’Donald from James West, made in November 1805, alleging a title to the land in dispute in James West. The rule is, that a deed is not evidence till some title, or shadow of title, is shown in the grantor; but it is not necessary for a party, in the first instance, to go further than that. Whether, on the whole, the plaintiff has made out a good and sufficient title, in every link of the chain, or all taken together, is a question depending on the effect of the evidence when given, and arises subsequently. The plaintiffs allege that the letter and accounts offered tend to establish an equitable title in James West, derived from Francis and John West and William Wilson, to whom they had traced the title by the deed of 6th June 1795, from James Hall and wife: and we think the evidence should go to the jury to show this. The letter of Wilson is his acknowledgment in writing, in 1811, that the small concern he had in the land had been purchased by Francis and John West, and that he had engaged to make them a deed and release his right. Then as to Francis and John West, who thus seem to have become entitled to the whole, the accounts in the handwriting of Francis and James West, or one of them, tend to show a sale of this land to James West, and his payment of the consideration money therefor. We do not say that this is conclusively proved, because the items offered are, in themselves, somewhat obscure and doubtful, and the equity alleged to exist may be disproved by these documents themselves, or by different circumstances: but that is matter for determination by the court and jury after the evidence is received. Being, however, in writing, if they tend to prove the payment for the land by James, and the acknowledgment of Francis and James that it belonged to or had been transferred to *373him (James), it would establish an equitable title in him, at least prima facie, and as against a defendant who shows no title, but is to be considered, for the present, as a mere trespasser, even though actual possession of the land were not taken by James West. For that doctrine of the necessity of taking possession would seem to be applicable to cases of parol contracts or bargains, which go upon the ground of part performance, and not to the case of a written evidence of the bargain. And a mere trespasser stands in a different light from F. and J. West,' or one claiming under them, since they may have acquiesced in the title as it stood, and waived all objections to it, knowing it to be valid in equity and justice; and if so, it is not competent to'a mere intruder to step in and take advantage of objections which the party himself would never make. We are, therefore, of opinion, that the court below erred in rejecting the evidence offered.

As the other point, the deposition, was rightly rejected, the notice was essentially defective in not being authenticated by a signature.

Judgment reversed, and venire facias de novo awarded.