14 Wend. 227 | N.Y. Sup. Ct. | 1835
By the Court,
There can be no doubt that a person entering upon land under a contract of purchase, unperformed on his part, does not hold possession adversely to the vendor. After performance, and an equitable title to a deed of the premises acquired, I perceive no reason why his possession may not become adverse, or in other words, there is nothing in the character of it inconsistent with the idea of an adverse possession. Whether it were in fact adverse or
It must have been decided in the case of La Frombois v. Jackson, 8 Cowen, 589, in the court for the correction of errors, that the fact of the defendant’s entering into possession under a contract for a deed, (for that I think is the nature of the instrument given in evidence in that case,) did not per se necessarily preclude the adverse character of the possession subsequently. See also 1 Cowen, 617, Opinion of Woodworth, J., and 5 Cowen, 92. Upon principles which are familiar, and which lie at the foundation of this doctrine, there seems no well founded objection or repugnance in conceding to a contract, that gives to the party confessedly a valid title to a deed, color of title sufficient to sustain an adverse possession. Upon this view, the judge erred in rejecting the evidence offered by the defendant. It is not for us to say, upon the whole case, if admitted, there was satisfactory evidence of an adverse holding. The testimony of one of the witnesses tended to weaken, if not destroy such a conclusion ; but the question was a mixed one of law and fact, and should have been submitted to the jury; and if they had found for the defendant, admitting the facts offered to have been proved, we should not have disturbed their verdict.
It seems to me, also, that the judge should have received the evidence upon another ground, though that was not taken by the counsel, viz. in order to lay the foundation for a presumption that a deed had been given in accordance with the contract. I think the jury would have been warranted in presuming a deed upon a possession undisturbed for some twenty five years after the deed was due from the plaintiff.
New trial granted.
