45 N.Y.S. 730 | N.Y. App. Div. | 1897
This action is in ejectment. The plaintiff traced title to herself by conveyances from one Purdy, who, about 1850, was unquestionably the owner and in possession of a tract of land, including the lot in dispute. The only substantial defense sought to be. maintained on the trial ivas that of adverse possession, and the only question presented on this appeal is, whether the defendant proved such facts as entitled him to go to the jury on the question. According; to the defendant’s testimony, in 1867 he went into possession of the lot in dispute and inclosed it with a fence; that possession he continued to maintain up to the trial of the action. Being asked how he happened to fence the lot,
But the defendant further testified that in 1869 he -bought the lot from.one Noll, and got a deed for. it;. that he did not record the deed because he did not know that it was necessary, and that the deed was afterwards burned up. There may be grave suspicion as to the truth of this story, excited by its. improbability, but •it was a matter to be passed on by the jury. If the jury believed this .story, then they might have found that from the time of obtaining this deed the defendant held the premises under a claim of right, for,, as was said in-the Sands Case (supra), however .groundless the title, if there be a claim of title, the possession will be adverse. It is true that in some of the cases and in the text books it is said that the original entry.must be made in hostility to the true owner, but' the rule is subject to qualification. “ A'possession taken under the true owner may, by a disclaimer of his title, subsequently become adverse.” (Jackson ex dem. Krom v. Brink, 5 Cow. 483.) So in Jackson ex dem. Swartwout v. Johnson (Id. 74) it was held that a possession taken at first under the true title may subsequently become, adverse. In Jackson ex dem. Belden v. Thomas (16 Johns. 293) it is said: “ The principle, however, that possession must, in its inception be adverse, arid continue so, is not well understood. ' In. those cases in which that observation occurs, nothing had happened to change the character of the first possession * * * If One enter on land without any title or claim, or color of title,
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed'and new trial granted, costs to abide the event.