Doe ex dem. Marston v. Butler, 3 Wend. 149

3 Wend. 149 | N.Y. Sup. Ct. | 1829

By the Court,

Sutherland, J.

I think the plaintiff was on the whole case, properly nonsuited. It is objected to a recovery under the first count, 1. That no possession is shéwn ever to have been taken by Bayard’s grantees, (of whom Marston was one,) under the conveyance to them of the 20th December, 1771; and 2. That no actual lease from Mars-ton, before his death, (which took place in January, 1814,) was proved ; and that the consent rule does not confess a lease which could not at the time be made.

First. Title and seisin are always considered united until a disseisin is shewii. (Co. Litt. 114, a. b.) A conveyance in fee having been shewn from Bayard, who is acknowledged to have been the original proprietor, to Marston and others, they are presumed , to have entered into possession, or whoever was in possession is presumed to have held for them and in subordination to their title, until the contrary appears. A surrender or re-conveyance to Bayard cannot be presumed, because no foundation for such a presumption is laid by the evidence. The defendant shews no title or claim of right under Bayard, either in himself or those from whom he derived the possession. “ Deeds, patents, and even acts of parliament, may be presumed to support the long and uninterrupted possession of a right or claim of right; but a conveyance will never be presumed to defeat the claim of a person shewing a good paper title, unless there has been an adverse possession or enjoyment under claim of right, in accordance with the fact presumed.” In Keene v. Deardon, (8 East, 263,) Lord Ellenborough, in relation to a presumption of a re-conveyance, says, “ Presumptions of this sort, when fit to be made, are always made in favor of the possession of those who are rightfully entitled to it.” The rule of presumption is lit res rite acta est, and is applied, whenever the possession of the party is rightful, to invest that possession with a legal title. Such a presumption will be made when it is necessary to clothe a rightful possession with a legal title ; but the court must first see that there is nothing but the form of a conveyance wanting. But this presumption in favor of a grant against written evidence of title, can never arise from the mere neglect of the owner to assert his right, when there has been no adverse title or enjoyment by those in whose favor the giant is to be presumed ; for the obvious reason that the presumption against the person shewing title, which arises from the delay in asserting his title, is equally balanced by the like presumption arising from the same delay on the part of the supposed grantee. (Opinion of Chancellor Walworth in Schauber v. Jackson, 2 Wendell, 35 to 38. 11 East, 372. Cowp. 214.)

Second. It has frequently been decided that the death of the lessor of the plaintiff will not abate the action; (Frier v. Jackson, 8 Johns. R. 495 ; 1 Wend. 27 ; Adams on Eject. 288, 306; 2 Cowen 355 ;) but in all those cases the death of the lessors was after the commencement of the action. The defendant may move to have the demise of a lessor, who died before the commencement of the action, struck out of the declaration ; (1 Caines, 20 ; 1 Johns. Cas. 392 ; Caines’ Cas, in Err. 102; 3 Johns. R. 259;) and it seems the motion will iq all cases (if the fact is not denied) be granted as a matter of course, and without costs to be paid to the plaintiff, on the ground that it is an irregularity in the plaintiff to make a dead man a lessor. Although, as a general rule, a lessor will be struck out of the declaration who is shewn to have tio subsisting interest in the premises, yet, under special circumstances, the court will permit such a demise to be retained-(10 Johns. R. 368. 4 id. 483. 2 Cowen, 502.) But it is no where said that any state of facts will induce the court to retain a demise from a man who was dead when the suit was commenced. If this be so, it is a ground of nonsuit when the fact appears upon' the trial and no other count is supported. Although the demise is a fiction, still the fiction must be such as might by possibility have been true. The lessor is supposed to have been capable of Making a demise not only at the time when the demise is alleged to have been made, but when the suit was commenced.

Third. The two counts on the demise of the heirs of Marston were not supported. The demise in both counts is joint, and there was no proof of title as to some of the lessors-The demise must be proved as laid. The persons who are supposed to have demised the premises, must be shewn to have had a legal power to demise ; and if the demise is joint only, it should be proved that the lessors had such an interest as would enable them to join in a demise, (2 Phil. Ev. 171. 2 Caines, 174. 12 Johns. R. 185, opinion of Kent, Ch. J.) The marriage of Cornelia Dennis (one of the grand children of Thomas Marston) and John B. Martin, who are both lessors, was not proved, and of course no interest was shewn in Marston. ,

Motion to set aside nonsuit denied.