Jackson ex dem. Murray v. Denn

5 Cow. 200 | N.Y. Sup. Ct. | 1825

Curia, per Sutherland, J.

The nonsuit must be set aside. The lessors of the plaintiff showed a continued possession in themselves, and the one from whom they derived it, under a claim or assertion of right from 1805 to 1821, or 2. In December, 1822, the defendant entered, without pretending any right or title, the premises being then vacant. This action was brought in April, 1823. The reason of the premises being vacant is given by Thomas Mumford, a witness for the plaintiff; who testified that he was the agent of the lessors, with authority to lease, or sell the lot; that he had leased it, for several years, to different tenants; that he last leased it to one Qmivy, who, after the expiration of his lease, held over, with the consent of the witness, who never knew that he had left the premises, until informed that the defendant had entered. This shows that the possession had never been abandoned by the lessors, without the animus revertendi.

In Smith v. Lorillard, (10 John. 338,) the rule is thug gtated: “ A prior possession, short of 20 years, under s> claim, or assertion of right, will prevail over a subsequent possession, short of 20 years, where no other evidence appears on either side.” It is, however, to be understood, that the prior possession of the plaintiff had not been voluntarily relinquished, without the animus revertendi; and that the subsequent possession of the defendant was acquired by mere entry, without any lawful right. (16 John. 325. 2 id. 22. 3 id. 383. 4 id. 208.)

Motion granted.