Jackson ex dem. Hill v. Streeter

5 Cow. 529 | N.Y. Sup. Ct. | 1826

Curia, per Sutherland, J.

A competent authority to make the sale appears, if it was, in fact, made under the judgment and execution. That it was made, the evidence leaves no doubt. In Jackson v. Pratt, (10 John. 381,) the execution was for £66-14-3 ; and in the sheriff’s deed it was recited as an execution for £66-14-3, debt, and £1-14, costs. The court say “ the recital was no necessary part of the deed, and a variance would not be material, nor affect the validity of the sale, so long as there was existing a sufficient power to warrant the sale.” (3 Ch. Cas. 101, per Holt, Ch. J. 18 John. 7.) A mistake in the recital of a bond will not vitiate it. It is not an essential part of the bond. (9 John. 90. Hob. 130. 3 Ch. Cas. 101. Co. Lit. 352, b.)

I do not understand the judge as having excluded the patent to Miles ; but only as deciding that the patent itself, without other evidence, would not show a subsisting title out of the lessor of the plaintiff. In this, I apprehend, he was correct. The plaintiff had shown a deed for the premises in question from Buck to John Streeter, in September 1789 ; that Streeter went into possession under the deed, and continued in possession until his death, 19 or 20 years before the trial, leaving four children : (the interest of two of them being owned by the lessor;) and that the defendant, Benjamin, one of the children, has been in possession ever since. This was a good adverse possession against the patent granted in 1790.

The evidence that Buck, who gave the deed to John Streeter, had no title, was properly rejected on several grounds. John Streeter was the common source of title to both parties. His children, there being no will, are presumed to have taken the premises by descent, as tenants in common. It is not for the defendant to say that the common ancestor had no title, and that his possession is not as tenant in common but in his own individual right.

New trial denied.