20 Johns. 301 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court. It was decided by this Court, in the cases of Jackson v. Sears, (10 Johns. Rep. 435.) and Jackson v. Stevens, (16 Johns. Rep. 110.) that a grant in fee, by the husband and wife, of
The deed to Reilly, in January, 1788, although the wife joined in it, was not within this statute, for it was an act entirely null and void as to her. The statute intended, where the conveyance was to devest her right, that she should aliene according to law, that is, by a deed acknowledged by her before a magistrate thereto authorized. That deed then operated only as a deed from Ryers, and did not devest the right of his wife, or her heirs.
When, therefore, Reilly re-conveyed to Ryers, the latter acquired no new right, but was merely re-invested with hig former estate, the right to the possession during the coverture. The mortgage to the new loan officers, in 1792, by Ryers, is open to the, same remarks. It had no effect on the wife’s rights.
It becomes wholly unnecessary to consider the effect of Ryers’ mortgage to Wain, in June, 1800, for this action was brought within seventeen years thereafter.
Cornelia Ryers died in July, 1795, and it becomes a question, whether the continuance of G. Ryers in possession from that time "until his death, in January, 1802, acquired the character of a hostile and adverse possession as against the heirs of his wife. It is asserted by the defendant’s counsel, that his possession became hostile and adverse imme
We must consider Mrs. Ryers as entitled to that part of the Corson estate which she possessed before her marriage with Ryers, and which he possessed during the coverture, and afterwards in severalty. There is no evidence that the co-parceners ever made partition, but thé undisturbed possession of one moiety of the Corson estate, by Simonson, and of the other by Mrs. Ryers and her husband, authorizes a presumption of a release among the co-parceners.
As to the right of Cornelia Corson to recover, the counsel for the defendants makes no objection. Indeed, there is no pretence to controvert it. She was a feme covertw hen Mrs. Ryers died, in 1795, and she continued so until December, 1810, when she was divorced a vinculo matrimonii. She, and her brother John Simonson, according to the 5th rule of descent, (1 Greenl. Ed. L. N. Y. 207.) inherited the share which their mother Mary would have inherited had she survived ; and, consequently, Cornelia Corson became entitled to one fourth part of the premises, this suit being brought within seven years after she became discovert.
As to Elizabeth Sebring, she was married to Jacob Se-bring before Mrs. Ryers's death. Sebring died in 1803. Unless, then, G. Ryers merely continuing in possession after the death of his wife, in 1795, claiming the premises as his, and erecting buildings thereon, constitutes an adverse possession, there is nothing to bar Mrs. Sebring's right to recover. It is observable, that G. Ryers made no conveyance of the premises after the death of his wife, until the 5th of June, 1800, when he executed a mortgage to Wain. I put out of view the deed to Reilly, and his conveyance to G. Ryers, as void and nugatory acts; Ryers must be considered as holding and enjoying the premises in consequence of his marital rights, and he was a tenant at sufferance after the death of his wife. “ An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.” (2 Bl. Com. 149.) “ And this estate may be destroyed whenever the true owner shall make an actual entry on the lands, and oust the tenant,;
The deed from Jacob Behring, and Elizabeth his wife, to Simonson and Muffie, for one third of the real estate whereof Jacob Corson died seised, dated the Sd of April, 1776, was not given in evidence in the former case 5 but the defendants claim no title under that conveyance, and have not connected themselves with it, and have not relied upon it in the argument. No effect, therefore, can be attributed to it, especially as Mrs. Myers possessed one half of the whole Corson property before her marriage with Myers, and as he, alsos by virtue of that marriage, possessed to the same extent. There must be judgment for the plaintiff for three fourths of the premises in question.
Judgment for the plaintiff, accordingly.