at the ensuing November term, delivered the opinion of the court, as follows.

By the report of the judge, several objections, it appears, were made to his decisions and instructions; some of which have since been abandoned; and two only have been relied upon in the argument. One is that Palkter recovered a judgment against one McKenney in May 1818 on a mortgage of the locns-in quo made by him on the 11th of February 1817, that execution was duly issued on that judgment, and that in March 1830 he ivas, in virtue of that execution, regularly put into possession of the same. It further appeared that prior to the mortgage, McKenney entered upon the hens in quo as a tenant at will under the plaintiff; and the defendant’s counsel has contended that on these facts the action is not maintainable. The answer to this objection we consider to he ’•or; plain. The plaintiff was no party to the judgment under ,M.'h the defendant entered and took possession ; it was res inter alios acta. McKenney, being a mere tenant at will under the plaintiff, his conveyance to the defendant was an act inconsistent with his tenure, and which determined his estate. The authorities cited by the plaintiff’s counsel establish this principle. The defendant’s entry, then, was tortious, and a trespass, for which the present action well lies.

The other objection is that the judge was incorrect, in his instructions to the jury, as to the evidence of pedigree. Those instructions were that “ the recital in the deeds was sufficient evidence for the jury to presume the relationship “as therein stated.” The deeds referred to were executed more than forty five years ago. II. Fairweather was the proprietor of the lot in question. From the recitals in two of the deeds, - it appears that Hannah Winthrop and Arme Mason were the daughters of Hannah Fairweather, named in the deeds; and though no such recital appears in the deed of Samuel Fairweather ; yet it purports to convey the same proposition as the two other deeds, viz. one third of one eighth part; and he states his right to have been derived to him by inheritance. All these circumstances seem to have been proper for the consideration of the jury, as legitimate grounds on which they might presume that Hannah *212Fairweather, mentioned in the deeds of Hannah Winthrop and Anne Mason, was the same person described on the proprietors’ records under the name of II. Fairweather ; and that the persons describing themselves as her children, were so in fact, and that all the grantors belonged to the same family. It must be remembered that the evidence before mentioned was not delivered to the jury as positive proof of the pedigree, but only as evidence from which they might presume the relationship as stated. Facts proveable by existing records are not generally to be considered as subjects of presumption ; there is no need of presumption ; the record or a copy should be produced. The facts in the present case are not of that description, nor does the evidence resulting from the recitals necessarily suppose better proof in reserve. It is not liable to objection on that ground. It is a familiar principle that after the lapse of thirty years, the execution of a deed is presumed, and, so, need not be proved. The case of Gray v. Gardner 3 Mass. 399, and Colman v. Anderson 10 Mass. 105, shew that in ancient transactions numerous facts, important, and absolutely essential may and ought to be presumed; and when such facts are recited in a deed as having taken place, the ground of presumption is strengthed ; because the probability of their truth is thereby increased. It must be admitted by all, that in modern deeds, recitals by the grantor as to his own pedigree, or the derivation of his title, or the existence of it, cannot of themselves be considered, in a court of law, as proof of the facts recited, or a ground of presumption for a jury. A man must not be permitted in this manner to make evidence for himself. But after a long series of years, as in the present case, where no other persons appear ever to have claimed the land in question, as heirs of the original proprietor, and thus denied or rendered improbable the truth of the recital, and where the defendant has offered no proof tending to destroy or weaken the presumption; in such cases a jury may be permitted to presume the pedigree, as stated in deeds of conveyance, unless facts control the presumption. See 1 Phil. Ev. 137, 138. A will by an ancestor is proof on an question of pedigree. Doe v. Ld. Pembroke 11 East 505. So recitals in family deeds, monu-*213merits, inscriptions, engravings on rings, &c. 13 Ves. 144. Cowp 594. 10 East. 120. In the case of Jackson v. Cooley 8 Johns. 128, Thompson J. says, in delivering the opinion of the court . — “ the books furnish us with no definite or precise rule on the “ subject; almost any circumstances which are calculated to show “ a general reputation, and afford reasonable ground of belief, “ are received as evidence of pedigree.” See 1 Phil. Ev. 188 to 194; and the distinction between those cases where recitals and declarations were written or made after the commencement of a dispute in the family, respecting the fact to which such recitals or declarations refer; and those cases where no circumstances existed, to influence the mind, at the time of such recitals or declarations. It is true that in most, if not all the cases before mentioned, the recitals or declarations were written or made by persons other than those under whom the party claimed, who introduced the proof; that is, by persons standing indifferent as to the title. In Jackson v. Cooley the power of attorney of the plaintiff’s lessor, in which he appointed the witness to act for him as heir and devisee of the ancestor, who formerly owned the estate in question, was admitted as evidence of pedigree, to go to the jury with other evidence ; and this was a transaction of recent date. This last case nearly resembles the case at bar. In that the pedigree was stated in a power of attorney signed by the plaintiff’s lessor; in this it is stated in the deeds from the plaintiff’s grantor; why was the power better proof of pedigree, for the consideration of the jury, in a recent transaction, than the deeds in the present case, of a very ancient transaction ? On the whole we think the instructions of the judge were correct, and there must be Judgment on the verdict.