#### Den on Dem. of JOHN W. REGISTER et al. vs. SAMUEL ROWELL.

Where a party is in possession of land, and registered deeds are produced, purporting to convey to him the land in question, nothing else appearing, it will be taken prima, facie that he entered, and holds under such deeds. Where plaintiff and defendant both claim under the same title, it is not competent for either party to deny such title.

A life-estate, conveyed by the premises and habendum of a deed, cannot bo enlarged into a fee by words of inheritance contained in the warranty or covenant for quiet enjoyment.

A warranty in a deed is co-extensive with the estate to which it is annexed, and when the estate ceases the warranty ceases.

Action of ejectment, tried before his Honor, Judge Ellis, at the Fall Term, 1855, of Brunswick Superior Court.

The lessors of the plaintiff are the heirs-at-law of one Kilby Register, who died about the year-, before the bringing of the suit. No grant from the State was shown by the lessors of the plaintiff, but to make good their title they showed that the defendant also claimed title through their ancestor, the said Kilby Register. To show this, they introduced deeds from Kilby Register to Niram Skipper, from Niram Skipper to Daniel Skipjoer, and from him to the defendant. The deed fromRegistertoNiram Skipper doesnot containinthe premises or habendum, any limitation to his heirs nor any .other words of inheritance, though the warranty is to him and his heirs ; and it being proved that Niram Skipper was dead before the *313bringing of this suit, it was insisted that the plaintiffs were entitled to tbe land as tlieir reversion. .

It was insisted below for the defendant, that there was no evidence that he, or those under whom he claimed, ever entered under the deed from Register to Niram Shipper, or in any way set it up or claimed under it; also that the lessors, as the heirs of Kelby Register, were rebutted from claiming the premises against the warranty of their ancestor, and that they were bound thereby.

The Court charged the jury, that the deed from Register to Skipper conveyed but a life-estate, and that the clause of warranty did not help the defect in the premises and make it other than a life-estate in Niram Skipper. Ilis Honor also charged that the chain of conveyances from Register to defendant, made it unnecessary for plaintiff to go farther back to establish-title, for that both plaintiff and defendant claiming under Register are both concluded from denying his title; also, that the heirs of Register were not rebutted from claiming against the warranty. Defendant excepted to all the positions of the charge.

Yerdict for plaintiff. Judgment and appeal.

London, for plaintiff.

Si/rcmge, for defendant.

Battle, J.

The lessors of the plaintiff seek to recover the land in dispute from the defendant upon the ground, that he is in possession, claiming under a deed from their ancestor Kilby Register, and that the deed conveyed only a life-estate which has expired by the death of the grantor. The defendant objects, fi/rst, that the lessors of the plaintiff had not shown that he claimed under the deed of their ancestor; secondly, that if such fact were;shown, the deed, upon .a proper construction of it, conveyed an estate in fee simple instead of for life only; and that at all events the lessors were rebutted by a clause of warranty, contained in the deed, from claiming the land therein conveyed.

The first objection is clearly untenable. The lessors .hav*314ing first proved that the defendant was in the possession of the premises sued for, produced registered deeds, showing an apparent chain of title from their ancestor to him. Surely, that was at least prima, faeie evidence that he was in possession, claiming under such title. If, in truth, ho entered under a different title, and had no connection with that derived from the ancestor of the lessors, he was at liberty to show it; but in the absence of such proof, the presumption was, that he was in under the deeds which had been proved and registered, and as we must suppose, proved and registered by those who apparently took an estate under them. The case then is one where, in ejectment, both parties claim under the same title; in which it is not competent for either to deny such title. It is not, as we have said several times recently, a case strictly of estoppel, but one founded in justice and convenience, and the question will be, which of the parties has the preferable title derived from the common source ? See Johnson v. Watts, 1 Jones’ Rep. 231; Thomas v. Kelly, Ibid 375 ; Feimster v. McRorie, Ibid 547. The defendant may indeed, if he can, defend himself by showing that he has obtained the better title from some person who had it, but he is not allowed to defeat the claim of the lessors by showing such better title outstanding in a third person. Love v. Gates, 4 Dev. and Bat. Rep. 363 ; Copeland v. Sauls, 1 Jones’ Rep. 70. The defendant in the present case, having made no attempt to show a better title in himself derived from a third person, the question arises, which party has obtained the preferable title from Kilby Register, the person under whom both claim ?

And this brings us to the second ground of the defense, to wit: that the deed of Kilby Register to Niram Skipper, under which he derives his title, conveyed a fee simple and not a more life-estate, as contended for by the lessors.

In no part of the deed in question is there any limitation to the heirs of Niram Skipper, though the title of the land is warranted to him and his heirs. That a life-estate contained in the premises and habendum of a deed cannot be enlarged into a fee, either by a warranty or covenant for quiet enjoy*315ment in fee, is abundantly shown by adjudicated cases. Roberts v. Forsythe, 3 Dev. Rep. 26; Snell v. Young, 3 Ire. Rep. 379. This rule, standing upon principle as well as authority, is not at all impugned by the cases cited for the defendant, of Armfield v. Walker, 5 Ire. 580, and Cobb v. Hines, Busb. Rep. 343.

The only remaining objection is that the lessors of the plaintiff, as the heirs-at-law of Kilby Register, are rebutted from claiming the land, by the warranty of their ancos tor. This .objection is met by the decisive answer, that the warranty ceases when the estate to which it is annexed determines. Seymores case, 10 Coke’s Rep. 96, 97; Lewis v. Cook, 13 Ire. 193. Upon the death of Niram Skipper his estate in the land was determined, and the heirs of the grantor were no longer rebutted from setting up their claim. There is no error in the judgment of the Superior Court,

Pee Curiam.

Judgment affirmed.