4 Johns. 201 | N.Y. Sup. Ct. | 1809
now delivered the opinion of the court.
This case presents an intricate mass of facts and minute circumstances, which it becomes necessary to analyse and digest, with care and patience, before we can discover the just inferences which flow from them,
John M'Comb was in possession of a tract of land in Salisbury and Stytinghurst’s patent, adjoining the premises, as early as the year 1764. He continued in possession until the year 1770, when Duncan and Campbell purchased, at auction, of the then sheriff of Albany, the right of M'Comb in the patent, and which was stated in the sheriff’s deed, to be one-half of it. They probably took possession immediately, and peaceably, with the consent of M'Comb, for we find them in possession in 1774, and the former tenant
Upon these facts, I think it results, that the plaintiff showed enough, in the first instance, to entitle him to recover. He showed a possession of eight or ten years, under a claim and colour of title. It is clear, beyond all doubt, that Baker, who entered and held under the plaintiff, would be concluded from setting up any adverse title, and any person who succeeded to the possession under Baker, would be equally concluded. In what way the defendant succeeded to the possession, does not appear. It is not stated or alleged, that he entered under any pretence or colour of title, and the natural and just inference seems to be, that he en
But the defendant set up and offered to show an outstanding title subsisting in some third person ; for he offered to prove, that Casper Salisbury, as heir to his father Herman, held a farm which included the premises, “ until Ludlow got possession in 1784, under his judgment and execution.” The first question which presents itself here is, whether a mere intruder can be permitted to protect his intrusion under an outstanding title in a stranger. I think not. The rule has never been carried so far, and it would be a violation of just principle to apply it to the case of a trespasser who enters upon another’s possession -without pretence of title. But if the defendant could be permitted to set up this defence, the next inquiry is, whether what he offered to show was a subsisting title. It was upwards of twenty years between the time that Ludlow is stated to have acquired the Salisbury title, under a judgment and execution, and the time of trial when the testimony was offered, and I believe the rule is, that where upwards of twenty years of adverse possession have run against an outstanding tide, it shall not be set up. (Buller's N. P. 110. 3 Johns. Rep. 386.) The presumption in that case is, that it is no longer
The validity of the two partitions is not to be questioned. It did not require releases to make the division valid. A parol division, carried into effect by possessions taken according to it, will be sufficient to sever the possessions, as between tenants in common whose titles are distinct, and when the only object of the division is to ascertain the separate possessions of each. This was so admitted by the' court in the case of Jackson, ex dem. Vandenberg, v. Bradt. (2 Caines, 174.) Those divisions being binding upon the parties, there did not then exist any objection to the competency of Hoxve as a witness. And as to the declarations of Ludlow, they became material only, in consequence of the defence set up by the defendant, and they then went to show, that the title referred to, was not regarded by the claimant as valid. Those declarations were made material only by the act of the defendant. When they were introduced by
The court are, therefore, of opinion, that the motion, on the part of the defendant, for a new trial, must be denied.
Rule refused.