5 Wend. 532 | N.Y. Sup. Ct. | 1830
By the Court,
I am inclined to think the deed to Gillet was good from the time when the approbation of the surveyor general was endorsed. It then became a deed executed with his approbation. A deed takes effect from its delivery. The time when it is actually signed by the grant- or is not material. In the absence of all evidence to the contrary, it will be presumed to have been executed and delivered when it bears date. Though it had been delivered without the certificate of the surveyor general, and consequently without passing any title to the grantee, still it was a
There was no adverse possession when the deed was executed. Dobbin entered in 1804 as a mere squatter, without any color of title, and in 1808 conveyed the lot to Murray and Mumford by a quit-claim deed, without any valuable consideration. The nominal consideration was the discontinuing by Murray and Mumford of an ejectment suit which they had brought against him for the same lot. They knew that Dobbin was a mere naked possessor without any claim of title. This is apparent on the face of the transaction, and their possession acquired in this manner was merely a continuation of Dobbin’s, and of precisely the same character. The giving of a quit-claim deed under such circumstances did not change the character of the possession. It remained the same as though Dobbin had surrendered it to Murray and Mumford without deed, or had continued in possession himself. They acquired the possession by the voluntary surrender of Dobbin, and not under a recovery in ejectment; and the fact that they had commenced an ejectment suit for the lot incidentally mentioned in the case, cannot afiect or give.color of title to their subsequent possession. Jackson v. Frost, 5 Cowen, 350. Jackson v. Thomas, 16 Johns. R. 301. La Frambois v. Jackson, 8 Cowen, 590. It did not appear upon trial that the possession of Murray and Mumford continued later than 1813. Dobbin remained in possession as their agent down to that time. From 1813 to 1823 there is no evidence that the premises were occupied at all. In 1823 a man went into possession who soon after-wards died, when the defendant entered, but by what authority does not appear. It was not pretended however that he claimed or held the possession under Murray and Mumford. There is no pretence therefore of a continued adverse possession.
The counsel for the defendant, upon the argument of the case, relied solely on the objections taken to the plaintiff’s
Motion for new trial denied.