¶1When this case was before us, at the last term, the defendant claimed, that upon the facts stated in his motion, he was entitled to a way of necessity over the lands belonging to Adino Hale, at the time of his decease. That claim we held tobe well founded. 15 Conn. Rep. 39.
¶21. He now goes farther, and insists, that he is not only entitled to such way over lands owned by Hale in severalty, but also over lands which he never owned, except as a tenant in common with other persons. It is now not denied, but that the heirs of Timothy Hale owned a share of the lands of the plaintiff, as tenants in common with Adino Hale, and that their ownership was continued down to the time of the salé to the plaintiff, by his executors. And the question is, whether the plaintiff’s interest in the lands not derived from the executors, can be affected by their deed to the defendant.
¶3*426/ A way of necessity can only be created in lands owned by the grantor, at the time of the conveyance ; and must be either reserved in the lands conveyed for the benefit of the grantor, or created in other lands of the grantor for the benefit of the grantee. It arises from a fair construction of the deed as to the presumed intent of the parties. And it affects nobody but the parties to the deed, or those claiming under them. It is true, the conveyance, in this case, was made by executors ; but the same construction, in this respect, is given to their deed as if it had been made by their testator.
¶4Now, although a man may, by his deed, incumber his own land, with a right o'f way, he has no power to create a like in-cumbrance upon his neighbour’s. The heirs of Timothy Hale were not parties to the conveyance to the defendant; and consequently, their rights remain unaffected by it.
¶5Had they owned the locus in quo in severalty, it would hardly be claimed, that the defendant would have had a right of way there. The circumstance that they owned but an undivided share, makes no difference in principle. They are just as much entitled to have that share unincumbered, as if they owned the whole property. It was not in the power of the executors to incumber the one, any more than the other.
¶6Besides, the instruction given to the jury, was, that if, at the time of the conveyance to the defendant, there were other lands belonging to the estate of Adino Hale, over which a convenient way might be had, by the defendant, to his land, he had no right to a way of necessity, over the lands of the plaintiff, which Hale never owned, except as tenant in common. The very statement of the proposition, shews there was no necessity for a way over the lands in which Hale's co-tenants had an interest.
¶7We are, therefore, satisfied, that the ruling of the judge on the circuit, was right.
¶82. A further question is made. It is said, that since the term of the superior court, in which the last verdict was rendered in this cause, the defendant has died. The defendant’s counsel now claim, that no judgment can be entered.
¶9Judgment might, and undoubtedly would, have been entered for the plaintiff, at that time, had it not been for the motion for a new trial, made by the defendant. If that mo*427tion does not prevail, it ought not to prejudice the rights of the plaintiff.
¶10There is no difficulty in directing judgment to be entered for the plaintiff, as at the term in which the verdict was rendered. This will be in conformity with justice and with the practice in England, and in other states. 2 Tidd’s Prac. 846. Tooker v. Duke of Beaufort, 1 Burr. 147. Trelawney v. Bishop of Winchester, 1 Burr. 226. Toulmin v. Anderson, 1 Taun. 385. Mackay v. Rhinelander, 1 Johns. Ca. 408. Ryghtmyre v. Durham & al. 12 Wend. 245.
¶11New trial not to be granted.
¶12Judgment to be entered nunc pro tunc.