Jackson ex dem. Sitzer v. Waltermire

5 Cow. 299 | N.Y. Sup. Ct. | 1826

Curia, per Savage, Ch. J.

It is urged, and I think correctly, that the same evidence of seisin should entitle the widow to recover her dower, as would be sufficient to authorize a recovery by the heir. In such case, “'the seisin of the deceased is proved by showing his actual possession of the premises; or by proving his receipt of rent from the person in possession. This is presumptive evidence of a seisin in fee; and sufficient, until the contrary appears.” (2 Ph. Ev. 187.) The rule laid down by Kent, Justice, in Bancroft v. White, (1 Caines, 190,) is this: “ The former husband of the demandant, for some years previous to me 1st of November, 1786, was possessed of the premises, and used them as ins own, and not in the right of another. He then, for a valuable consideration, conveyed the same in fee with a covenant of warranty ; and the lands have passed by subsequent conveyances in fee to the present tenant. This is sufficient evidence in the first instance, of seisin in the husband. The wife is not bound to produce her husband’s deeds; because it is not presumed to be in her power ; and, in the present case, the tenant claims in fee under title derived from the husband. The marriage and death of the husband being proved, there is no question in the case.” In Embree v. Ellis, (2 John. 123,) Thompson, Justice, says, “ The principal question in this case is, whether a sufficient seisin in the demandant’s husband has been shown, to entitle her to dower. Lewis Morris, the son, had been possessed of the premises in question by receiving the rents and profits thereof for ten years. He then conveyed them in fee to the demandant’s husband, who continued in possession for ten or twelve years, until they were sold under an execution against him; and purchased by Lewis Morris, the son. These facts were clearly sufficient, prima facie, to entitle the demandant to a recovery.”

The same evidence of title is required in this case, as if there had been no proceedings before the court of common pleas. They merely locate the premises; but determine nothing as to the right. (Matter of Watkins, 9 John. 245. Jackson v. Hixon, 17 id. 123. Jackson v. Randall, 5 Cowen, 168.)

In this case, it appears that between thirty and forty years ago, the husband bought the farm, and paid something towards it. He sold to Wilcox; and from him it passed through the hands of Ilesidorph and Traver, to the defendant, who purchased from Traver, and is now in pos session under that title. The possession accompanied every conveyance. No deeds are shown ; though notice was given to produce them. And no objection ivas made to the parol testimony oí the above facts.

In my opinion, this was prima facie enough. The non-suit must be set aside, and a new trial granted.

Rule accordingly.