The opinion of the court was delivered, May 17th 1873, by

Admitting the application to this case of the rule that the recitals of title in a patent are prima facie evidence, not only against one claiming by subsequent grant from the Commonwealth, but also against one who relies on possession alone, and shows no title, the learned judge was not warranted by the recital itself in the position that at the time of the alleged con*426version the plaintiff below was the owner of the land. In his answer to the second point of the defendants he referred to his general charge, and in that he had instructed the jury that the patent recited substantially, inter alia, that Robert McNair was dead, and Robert M. McNair was his executor, with power to sell, but there was not a .word in the recital about any power to sell. It recites merely a conveyance by Robert M. McNair, executor of Robert McNair, deceased. It requires no authority to show that an executor has no authority as such to convey land. He must have power by the will, or by an order of the Orphans’ Court. Such a power surely is not to be inferred by the mere fact of a conveyance by the executor. There was error therefore in the answer that the plaintiff had shown sufficient title to enable him to recover. ,

But we are of opinion that the rule in regard to recitals in patents from the Commonwealth, as we have just stated,-had no application in this case. It was an action of trover for timber trees, cut and taken off by the defendants’ intestate, Joseph Green, from land which the plaintiff claimed to own. It was undoubtedly necessary that the plaintiff should show that he was the owner of the land at the time of the conversion, which was when the trees were out and taken off in the winter of 1867-8: Act of 29th 1824, 8 Smith 283. That was prior ‡0 the date of the patent to plaintiff. The liability of the defendants’ intestate was fixed at the time of the conversion to the then owner. If at that time the plaintiff had tried his action, he must.have produced the title from the warrantees. The patent was not then in existence. If Joseph Green had then a right originating by warrant or settlement at that time, it is agreed that the recital in the subsequent patent would not be admissible in evidence against him to prove the warrant or its devolution to the patentees: Penrose v. Griffith, 4 Binn. 221; Gingrich v. Foltz, 7 Harris 40. If then a right arising prior to a patent cannot be affected by a recital in such patent, surely it is a logical consequence that neither can a liability. When the controversy relates either to a right or a liability, which are in their nature correlative, we must adjudge it by evidence then existing, not by evidence subsequently created; unless, indeed, it be the judgment of a competent court. Brennesholtz certainly could not subsequently make evidence for himself; neither were the officers of the land-office a competent tribunal to pronounce judgment upon his title, so as to affect the liability of Green to an action for trespasses prior in date to the patent. If the heirs or devisees of Robert McNair had brought an action, claiming to have been owners of the land at the time of the conversion, Green certainly could not have availed himself of the recital in the patent to show that their title had passed to Brennesholtz, neither ought Brennesholtz to be allowed to do so.

Judgment reversed, and a venire facias de novo awarded.