31 Barb. 511 | N.Y. Sup. Ct. | 1860
The land for which this action was brought was owned originally by one Sarah Norroway Clarke. She died in 1810, intestate, seised and in possession of the premises. She was unmarried, and left. two sisters, both of whom were aliens, and an aunt, Sarah Norroway, the wife of Anthony Norroway. This Mr. and Mrs. Norroway were living upon the property with Miss Clarke, and after her death they continued in the occupation of it as long as they lived. Anthony Norroway died in 1831, and Sarah Norroway in 1832. It does not seem that they made any claim to be the owners of the property, although, so far as the facts appear, Sarah Norroway was the only person capable of inheriting lands, who was or could have been an heir of Miss Clarke, her niece. Mr. and Mrs. Norroway were inhabitants of this country before the revolution, and continued -here afterwards, thus becoming citizens, and capable of taking lands by descent. The two sisters of Miss Clarke were aliens, as I have already said. One of them was a Mrs. Walker. She had an illegitimate daughter, one Mary Ardley, who came to this country after the death of Miss Clarke, and lived upon the premises' with the Norroways during their lives, and afterwards until the year 1841. Both she and her mother were aliens, and independent of the defect in her birth, both of them were on this
The first question which the case presents is whether a person who has been evicted from the possession of lands, can, without showing title in himself, maintain an action for them against the grantee of his disseisor, who is also without title. Another question is, whether the present plaintiff, who is' a
It is conceded that Broad could have recovered against Badeau.upon the strength of his prior possession, but it is contended that he could not recover against the defendant, who received a conveyance from Badeau while he was in possession and entered peaceably. Or, if Broad could recover against the defendant, it is urged that the plaihtiff could not, because the mortgage made by Broad was not foreclosed until after he was disseised, and the plaintiff personally has never been in actual possession.
Questions of this nature have been more frequently presented to the courts of this than of our mother country, by reason- of the greater frequency of their occurrence in a country whose settlement is comparatively new and sparse. There are, however, some early cases upon the first point, cited from the English books. Thus in Bateman v. Allen, (Cro. Eliz. 437,) a special verdict found an entry on the plaintiff’s possession, without 'finding title or a prior possession in the defendant, and the plaintiff had judgment. The same principle will be found in Allen v. Rivington, (2 Saund. 111.) to the effect that where priority of possession appears for the plaintiff and no title in the defendant, the plaintiff shall have judgment.
In Jackson v. Hazen, (3 John. 22,) the principle was applied in favor of a plaintiff who had been disseised by a tortious entry without any claim or colour of right or title from any person. The same was the case in Jackson v. Harder, (4 John. 202, 210.) The defendant showed no pretense or color of title to justify his entry, and the plaintiff recovered against him on a possession of eight or ten years under a claim and color of title. Smith v. Lorillard, (10 John. 338,) is a leading case, and cannot be distinguished from the present case upon the question I am now considering. The defendants there were purchasers from a disseisor, bona fide purchasers,
That the defendant is in by a conveyance from Badeau, and was not himself the original disseisor, does not affect the question. The deed by which he claimed did not afford evidence of title which could rebut the presumption from the prior possession of Broad. It could not convey any other or greater right than the possessory right belonging to Badeau, which was inferior to that of Broad. Sor was it an act which of itself so changed the nature of the estate, as to put the disseisee not only to a different remedy, hut to additional proof. An alienation by a disseisor did not have, in all respects, the same effect as his death and the consequent descent. A descent cast was held to toll an entry, for reasons which are not applicable to the case of a conveyance. That was upon the ground that the heir of the disseisor, upon whom the descent was cast, came in entirely by the act of the law; that the disseisee should not have allowed the disseisor to remain in possession all his life, and upon the feudal reason that there should he a tenant to do the feudal services after the death of the disseisor in possession. (See Co. Litt. 238, et seq.; and Hargrave & Butler’s Notes, and 1 Black. Com, 176.) Even in the case of a descent cast, however, although the entry was taken away, the disseisee had his writ of entry or of assize “in the per” as it was said, against the heir, and the same writ against the feoffee or alienee of the disseisor, hieither
The referee was also in error in supposing that the plaintiff could not recover because he personally had never been in possession. There is of course a sense in which it is true that the grantee of a person who has or" has had the possession of real estate, cannot recover against a disseisor where his grantor might. But the strength of his title would not avail a party in a case where he was met with such a difficulty ; nor is it strictly true that a deed which conveys no title does not convey any possession, that is any right to possession, for actual possession of course is not conveyed by a deed. The difficulty in the case supposed by the referee would be, that the deed would be void because made by a person out of possession, and would not convey any thing. The importance of the question of actual possession, in such a case, however, would
But this is not the case of a deed made while the grantor was out of possession. The plaintiff’s title came through the foreclosure of a mortgage, made while the mortgagor was in possession. The actual deed to him was made in pursuance of a judicial sale based on this mortgage, and was not open to objection because the grantor or mortgagor was not in possession when the sale took place. It vested in the grantee all the title of the mortgagee, and carried with it all the title of the mortgagor, and related to the date of the mortgage. It was as if Broad had conveyed to the plaintiff at the time when he made the mortgage. The plaintiff therefore stood precisely in the place of Samuel B. Broad, and can recover in this action upon the same proof that he could.
As the decision of the referee was incorrect upon both these points, the judgment entered upon his report must be reversed and a new trial ordered at the circuit, the costs to abide the event.
Lott, Emott and Brown, Justices.]