¶1The opinion of the court was delivered by
¶2This is an action of trespass for cutting timber on a lot of land in Roxbury. The plaintiff 'was in possession of *478the locus in quo, though not in the actual use and opcupation of the place, where the trespass was committed. This possession undoubtedly gave him a right to recover against any one, but the true owner, or some one acting under him, or by his permission. The case itself presents but two questions, — First, The effect of the judgment recovered by Parkhurst against the plaintiff, Edwards, and, Second, The effect of the deed from Parkhurst to the Spauldings, under whom the defendant entered and cut the timber in question.
¶31. The judgment recovered in the action of ejectment, by Parkhurst against Edwards, was conclusive between the parties, that the title was in Parkhurst, and not in Edwards, who is the plaintiff in this action. This effect is declared by statute. Rev. St. 215. A recovery in ejectment is conclusive as to the title between both plaintiff and defendant. By that judgment it was judicially established and confirmed, that Parkhurst, at the time of the commencement of the suit, in which the judgment was rendered, was, and that Edwards was not, the owner of the land in question ; and of course he was a trespasser on Parkhurst.
¶42. Unless the defendant can justify the trespass, complained of, under Parkhurst, it will follow, that a mere trespasser can recover of the true owner, or one who acts under him, although at the same time he is liable to the true owner therefor. We are not satisfied, that a conclusion, apparently so inconsistent, can result from our statute, avoiding deeds, where the grantee is not in possession. The statute enacts, that a deed, where any other is in possession, claiming adverse to the grantor, shall be void, and insufficient to pass any title to the grantee. But it is abundantly established by decisions, that such a deed is good between the parties. It was so considered in the case of Livingston v. Peru Iron Co., 9 Wend. 523, and in Wade v. Lindsey, 6 Met. 407.
¶5It has always been considered in this State, that although the deed was insufficient to pass a title, so that a recovery could be had in an action of ejectment by the grantee, yet that a recovery in the name of the grantor should enure to the benefit of the grantee. The effect of it must be to enable the grantee to do any such acts, as may be necessary to establish the title of the grantor, but still in the name of the grantor.
¶6The necessary consequence of holding such a deed as good be*479tween the parties must be to give to the grantee a license to do all and any such acts, as the grantor himself might do. A mere verbal license from Parkhurst to the Spaldings, or to the defendant, to enter upon the land in question, would have afforded a complete justification to them in this action of trespass; and, a fortiori, the deed, which, as it respected Parkhurst and the Spaldings, is valid, must have a similar effect.
¶7We think, therefore, that the deed from Parkhurst to the Spaldings was properly received in evidence, and justified the defendant, as against the plaintiff, in this action.
¶8The judgment is therefore affirmed.