Bromagham v. Clapp

5 Cow. 295 | N.Y. Sup. Ct. | 1826

Curia, per Savage, Ch. Justice.

The plaintiffs are each entitled to one ninth of the premises in question, unless they have parted with their interest; or are barred by the statute of limitations.

Peter, by virtue of his appointment as committee of the lunatic, was entitled to the real estate ; but after his father’s death he had no interest, except as one of the heirs at law, and as the assignee of Isaac, whose right he had purchased ; he could, therefore, convey no greater title to the defendant.

It is contended, however, that the possession has 'been so long adverse that the plaintiffs are barred. If the possession was adverse from the death of the lunatic, then twenty four years had elapsed when this suit was commenced, which was in May, 1823. But I apprehend the possession of one tenant in common enures to the benefit of all his co-tenants, unless there has been an actual ouster, or something tantamount thereto. (3 Cruise’s Dig. 485.) The defendant’s possession was adverse from the 3d of May, 1803, when he was in possession, claiming title under a conveyance of the whole. This was a trifle more than twenty years before the present suit was commenced. The possessory right, therefore, is gone as to all the plaintiffs ; for though Jemima Martin was covert in 1803, yet her husband died thirteen years before this suit was commenced. She was barred in ten years after the disability was thus removed.

But though the possession and the right of possession are thus gone from the plaintiffs, they have a remedy by writ of right. In this action of partition, the several rights of the parties are ascertained, and their portions designated ; but possession is not awarded. If the plaintiffs had' lost all remedy it would be useless for the court to inquire mto the right. But their remedy is not gone till twenty-five years adverse possession shall have elapsed. It is therefore, the duty of the court, in the language of the statute, to “ascertain and determine the respective rights of the parties, <fcc. and give judgment that partition be made according thereto,” &c.

The plaintiffs are each entitled to one ninth of the premises in question. The judgment must accordingly be for the plaintiffs for three ninths ; and that commissioners be appointed to make partition, &c. (1B. L. 509.)

Woodworth, J., having formerly been concerned as counsel, in relation to the rights in question in the cause, gave no opinion.

Judgment accordingly.