Jackson ex dem. Swartwout v. Johnson

5 Cow. 74 | N.Y. Sup. Ct. | 1825

Lead Opinion

Sutherland, J.

The lessors of the plaintiff made out a clear paper title to the premises in question; and are entitled, to recover, unless the deed from Cadwallader Golden to Mrs. Cooper, of the 5th November, 1792, was void under the statute of champerty and maintenance, or their rights Darred by adverse possession.

The questions which arose in the suit of the same lessors against Cole,^(a) whether the trust in favor of the heirs of David Golden, created by the act of 1787, was executed by the statute of uses, or if not, whether a conveyance from the trustee to the cestuis que trust was to be presumed, are excluded from this case; because an actual conveyance from their trustee is proved; and the first question which arises is, whether that- conveyance was valid. It bears date on the 5th November, 1792 ; and it is contended by the defendant that it was void ; because at the time of its execution, the premises in question which, among others, it purported to convey, were in the actual possession of the defendant, under a contract of sale made between Cadwallader Golden, by his attorney William Cooper, and one Matthew Rogers, on the 12th day oí May, 1790. It appears that the defendant, as the assignee of that contract, entered upon a part of the premises which it contains, in the summer of 1790, made a small clearing and erected a log house; that on the 13th day of December, 1793, he took a deed from William Cooper, as the attorney of Golden, and has remained in the possession down to the time of the trial.

This, it is said, was an adverse possession from the time of the defendant’s entry in 1790; but if not so, then, that it became adverse upon the receiving of his deed in 1793.

So far as the question of maintenance is concerned, it is not material whether the defendant’s possession became adverse or not, upon receiving his deed in 1793. If the lands conveyed to Mrs. Cooper by the deed of November 5 th, 1792, were not then held adversely to the grantor, the deed was not void on the ground of champerty and maintenance. The adverse possession must exist at the time of the conveyance, in order to avoid it. If the defendant’s possession was not then adverse to Cadwallader Golden, under whom he entered, it was in judgment of law the possession of Golden; and his conveyance would not be affected, either by the terms or the principles of the act against champerty and maintenance. In the view of that act, it would be valid, whatever might be its legal effect and operation.

Was the defendant, then, on the 5th of November, 1792, in possession of the premises in question, holding them adversely to Cadwallader Golden ? By the contract with Rogers, he was to have a deed for his land from Golden upon his paying him £262 10, with interest, annually, on or before the 12th day of May, 1800. The contract does not, in terms, authorize Rogers to enter upon the land. It coi itains no words of present demise. It recites that Rogers, b} his obligation, bearing even date with the agreement, was indebted to Golden in the sum of £262 10, and covenants that in consideration thereof, the said Golden will convey to the said Rogers, the premises mentioned therein, if the said Rogers shall pay the said sum of £26210, with interest, annually, on or before the 12th day of May, 1800. Rogers, therefore, or his assignee, was not entitled to a deed until the land was paid for. He did not enter, claiming the whole title. The contract itself admits the title to reside in Golden, and that it was to remain in him until Roger’s part of the agreement was performed. Now, admitting the deed to the defendant, given in 1793, to be evidence of performance on his part, it is evidence of performance only at the time it was given, and not at any antecedent period. In 1792, therefore, when the deed to Mrs. Cooper was given, the defendant had not performed, and was not entitled to a conveyance. Such a possession has never been considered adverse. In Jackson v. Bard, (4 John. 230,) one Barton, in May, 1798, entered into articles of agrceement with Dickenson and Harris, for the sale of certain premises. Soon after, one Smith purchased a portion of the premises from Dickenson by contract, and paid him $25, and entered into possession. On the 8th March, 1799, Barton gave a deed to Dickenson, and took back a mortgage. Barton foreclosed the mortgage, and the lessor of the plaintiff became the purchaser, and took a deed from Barton on the mortgage sale. The tenant in possession under Smith forbid the sale, and it was contended that the possession of Smith was adverse at the time of the giving of the mortgage, so as to render it void and prevent its operation. But the Court held it not to be adverse to Barton’s title. They say Dickenson could not have set up against Barton an adverse holding; and Sm th who claimed under him, must be considered as standi- ig in the same situation.

In Jackson v. Camp, (1 Cowen, 605.) tb - same principle is distinctly recognized. One Dyer madi- a contract fm land with the agent of the proprietors ir 1792, and en tered under it. In 1794 he received his deed. In 1796 he sold a part of it to the defendant. It appeared that he took possession under his contract, of land which the deed did not cover, and the defendant sought to retain it, on the ground of adverse possession. The possession taken under Dyer’s contract, was held not to be adverse on several grounds. But, among others, the Court say, the agreement (made by Dyer with the agent) “ did not put him in a situation to commence holding adversely, until he performed the condition. The land still belonged to the proprietor of the township. Whether he ever would perform, was contingent. He entered on the lot, it is true, but it was’necessarily subject to the right of turning him off if he neglected to make full payment. The possession, therefore, when taken, had not the characteristics to constitute it adverse. It was not hostile in its inception. On the non-performance, Dyer, would become liable to be turned out as a trespasser, and responsible in that character for the mesne profits.” These observations are entirely applicable to this case, and are decisive of the question of ad verse possession, at the time of the giving of the deed from Cadwallader Golden to Mrs. Cooper in 1792. That deed therefore was not void on the ground of champerty or maintenance.

A possession, in order to be adverse, must be accompanied with a claim of the entire title. If it appear that the title claimed is subservient to, and admits the existence of a higher title, the possession is not adverse to that title. (Smith v. Burtis, 9 John. 180.) Now, in this case, the agreement between Golden and Rogers, is an admission on the part of Rogers, that the legal title remained in Golden ; for it provided for the conveyance of that title to Rogers at a future period, upon certain contingencies. If Rogers had not performed the agreement, it would have afforded all the evidence of title, which would have been necessary to enable Golden to recover the possession from him, hr an action of ejectment. Golden might perhaps be considered as the trustee of Rogers, holding the legal estate in trust for him, upon performance on his part; and if Golden’s estate in the land had been absolute and in his own right, and not in trust the heirs of David Golden, his grantee would probably have^taben it subject to the trust for Rogers, and might perhaps have been compelled in Equity to convey. It may well be doubted whether, in a case like this, where the legal estate has been united to the older equitable interest, Chancery would interfere in favor of a younger Equity. But that inquiry is irrelevant here ; for in this action the legal title must prevail.

But if the defendant had not such an adverse possession on the 1st of November, 1792, as to render the conveyance to Mrs. Cooper of that date, void, it is contended that his possession, at all events, became adverse to the lessors of the plaintiff on the 13th of December, 1793, when he received his deed from Cadwallader Golden; and that the claim of the lessors of the plaintiff is barred by the statute of limitations. It is answered that Mrs. Cooper was, at that time, both an infant and feme covert; that her coverture continued until her death in 1797; that the descent to her children was suspended during the life of Thomas Cooper, her husband, who was tenant by the curtesy, and who survived until 1817. In reply, it is denied that Mrs. Cooper ever was so seised as to constitute her husband tenant by the curtesy. In order to create such a tenancy, it is said, that there must be a seisin in fact, either in the wife or the husband in her right. But admitting there was a sufficient seisin, then it is contended that in December, 1793, when the defendant’s adverse possession commenced, Cooper was not tenant by the curtesy, as it is not shown that Golden Cooper, his son, was thén born ; that his life estate did not commence until the death of his wife, in 1797; and that the statute having commenced running in 1793, could not be impeded by any subsequent disability.

It is well settled that cumulative disabilities are not allowed or protected by the statute; that a party can only avail himself of the disabilities existing when the right of action first accrued. (Demarest v. Wynkoop, 3 John. Ch. Rep. 138, and the cases there cited and examined by Chancellor Kent, and Jackson v. Wheat, 18 John. 45, where the doctrine is fully recognized.)

It is also clear, both from the words and policy of the statute, and the repeated expositions which have been given to it, that if twenty years have elapsed since the right of action accrued, and ten of those 3rears have been free from disability, the right of entry is barred ; that is, the party is not entitled to twenty years after the disability ceases, to bring his action, but to ten years only, provided, at the expiration of those ten years, twenty years have elapsed since the right of entry or action accrued.

Thus, in this case, Mrs. Cooper, in 1793, when tire defendant’s adverse possession commenced, was an infant and feme covert. She was, at all events, entitled to twenty years to bring her action ; and if her coverture continued also for twenty years, she was entitled to ten years after it ceased. The statute would have protected her for thirty years. But if her infancy and coverture had ceased at any time within ten years after the defendant’s entry, then she was barred at the expiration of twenty years; because she had more than ten years free from disability. Her infancy, in fact, terminated in 1796, and her coverture in 1797, when she died. If her husband had not a. life estate as tenant by the curtesy, so that her lands then descended to her heirs, their right of entry terminated in 1813, being twenty years from the commencement of the defendant’s adverse possession, and more than ten years after the termination of the disabilities, and death of their ancestor. Kent, Ch. J. in Smith v. Burtis, (9 John. 181,) considers this the true exposition of the statute; and although he says that the question did not necessarily arise in that case, and therefore he did not wish the opinion on that point, then expressed by him, to be considered definitive, subsequent reflection and examination confirmed him in that opinion; for he reiterates it in the case of Demarest v. Wynkoop, already referred to. (Vid. also 4 Taunt. 826. 6 East, 50. 4 Day, 298. 2 Conn. Rep. 27. 4 Mass. Rep 182. 4 T. R. 300. Plowd. 353.)

Unless, therefore, Thomas Cooper was tenant by the curtesy of his wife’s lands, so as to suspend their descent to her heirs, the claim of the lessors of the plaintiff is barred by the statute of limitations.

It seems to be supposed by the counsel for the defendant, that unless the life estate of Cooper had vested, by the birth of a child, previous to the commencement of the adverse possession in 1793, although he might subsequently have become tenant by the curtesy, the heirs of Mrs. Cooper could not avail themselves of this new disability, to avoid the bar of the statute of limitations ; that it would fall within the principle of cumulative or successive disabilities, which are not allowed by the policy of the act.

It is clear, that the birth of a child at any time during coverture, whether before or after the commencement of the defendant’s possession, would constitute Cooper tenant by the curtesy of all the lands of his wife, of which, during coverture, she was so seised as to support such an estate. Lord Coke, (1 Inst. 30, a.) says, “ four things belong to an estate of tenancy by the curtesy, viz. marriage, .seisin of the wife, issue, and death of the wife. But it is not necessary that these should concur together all at one time; and therefore if a man taketh a woman, seised of lands in fee, and is disseised, and then have issue, and the wife die, he shall enter and hold by the curtesy. So if he hath issue which dieth before the descent.” (Vid. also, 8 Rep. 36, Paine's case,^(a) 13 Rep. 23, Menvil's case. 1 Cruise’s Dig. tit. 5, Curtesy, ch. 1, s, 11, 25, p. 107, 112, 113.)

Cooper then had a life estate in the premises in question, which was initiate, as it is expressed, (Coke Litt. 30, a.) upon the birth of a child in 1793; and became consummate upon the death of his Avife in 1797, and continued until his death in 1817.

During the existence of this particular estate, the lands of Mrs. Cooper did not descend to her heirs, so as to give them a right of entry. The question then recurs, whether this particular estate which arose, or was created subsequent to the commencement of the adverse possession in 1793, was a cumulative disability, of Avhich the lessors of the pláintiff cannot avail themselves under the statute, by way of excuse for not having brought their action within thirteen years after the death of thew ancestor; the period within which they must have brought it, if this estate by the curtesy had not existed.

The statute declares that no person shall make any entry into lands, but within twenty years next after his right or title descended or accrued; provided, that if any person, entitled to make such entry, be, at the time such right or title first descended or accrued, within the age of twenty-one years, feme covert, &c. such person and his heirs shall' or may after the said twenty years be expired, make such entry, as he or they might have done before the expiration of the said twenty years, so as such person, within ten years after such disability removed, or the heir or heirs of such person, within ten years after his death, make such entry. Now it is most obvious, that the heirs here contemplated, are such heirs as have a right of entry. The object of the statute was to punish parties guilty of laches in the assertion of their rights, by a forfeiture oí them. The proviso was intended to save those who, in judgment of law, had a reasonable excuse for their delay; and give to them and their heirs ten years, after the disability should be removed, to-bring such action, or make such entry as they might have brought, or made within the twenty years.' But the parties in reversion in this case could not have made entry, or brought any action to recover the possession during the twenty years. The statute would work great injustice, if it were held to affect the rights of reversioners or remainder men, during the continuance of the particular estate. Such was the view of the statute taken by this Court, in Jackson v. Schoonmaker, (4 John. 390,) and Jackson v. Sellick, (8 John. 262.) In the first case, it is said, that neither a descent cast, nor the statute 'of limitations, will affect a right, if a particular estate existed at the time of the disseisin, or when the adverse possession began; because a right of entry in the remainder man cannot exist during the existence of the particular estate. And the laches of a tenant for life will not affect the party entitled. The reason given shows that the circumstance, that the particular estate existed at the time of the disseisin, or when the adverse possession began, can vary the case. It applies with equal force to a case where it accrued subsequently.

In Jackson v. Sellick, the adverse possession commenced in 1772, when Vincent Matthews was tenant by the curtesy; the estate in reversion being in his daughter, then an infant. She married Beekman in 1783; and Matthews, the tenant by the curtesy, died in 1784. Beekman, the husband, died in 1807; and his -widow, the daughter of Matthews, was tire lessor of the plaintiff. When the adverse possession commenced, the only disability that existed, independent of the estate by the curtesy, was the infancy of the lessor. Iler coverture did not commence until 1783; the particular estate having terminated in 1784. It was contened that the lessor being then of full age, and having a right of entry, was bound to exert it; and that she could not avail herself of her coverture; and it was urged that her coverture was a second or cumulative disability, which was never allowed. But the Court held, that during the particular estate, no right of entry had descended to the lessor; that the statute, therefore, did not begin to run until the death of the tenant by the curtesy; that coverture was the first disability; and they reiterate the language used by them in Jackson v. Schoonmaker, that the statute of limitations does not affect the right of a remainder man during the continuance of the particular estate. If the right of remainder men or reversioners are not affected by the statute, then, during the life of the tenant by the curtesy, it could not have run against the lessors ; for they had no right of entry until his death. If Mrs. Cooper, then was so seised as to constitute her husband tenant by the curtesy, the right of the lessors are not barred by the statute of limitations, and they are entitled to recover.

It is said to be indispensable, that there should be an actual seisin of the land, either by the wife or by the husband in her right, in order to constitute him a tenant by the curtesy ; that a seisin hi law is not sufficient to support such an estate; it must be in fact and in deed.

This is undoubtedly the general language of the English authorities. (Coke’s Litt. 39, a. Cruis. Dig. 108, tit. 5, ch. 1, s. 10.) But this rule, in its literal strictness, has not been adhered to, either in England or in this country.

In De Grey v. Richardson, (3 Atk. 469,) Lord Hardwicke ruled, that the husband was entitled to hold as tenant by the curtesy, an estate tail descended to his wife from her brother, which was leased for years; and on which kaizes there were large arrearages, but no rent paid during the life of the wife. So that the possession of a lessee for years, is so far the possession of the person entitled to the inheritance, even before the receipt of rent, as to entitle the husband to curtesy. And several other cases, in which the relaxation of the rule is exemplified, are collected in 1 Cruise’s Dig. 110, 11, 12.

■ In this Court, (Jackson v. Sellick, 8 John. 270,) it was held not to apply to wild and uncultivated lands ; that in relation to them, actual occupation was not necessary to sustain an estate by the curtesy; that the possession follows the title so as to enable the owner to maintain trespass, and, with equal reason, to sustain an estate by the curtesy.

But it is suggested by the counsel for the plaintiff, and I think with great force, that the rule requiring an actual seisin, applies only to cases in which the title of the person claiming is not complete till entry. Thus, a person claiming by descent or devise, has only a seisin in law before entry; and if he die before entry, the inheritance will go, not to his heir, but the heir of the person last actually seised. Upon such a seisin of the wife, there could be no estate by the curtesy. Her issue would not be capable of inheriting from her; and the rule seems to be, that, to enable the husband to be tenant by the curtesy, the wife must have such seisin as will enable her issue to inherit from her. (Cruise’s Dig. 112, s. 24.)

Now, in all the cases in which an actual seisin of the wife has been held necessary, it will be found that she claimed either as heir or devisee; and not by virtue of a deed or conveyance to which effect is given by the statute of uses. Where the statute executes the estate, as is said by Blackstone, (2 Com. 238,) the party intended to be benefited, is put at once into corporal possession of the land, without ever having seen it., by a kind of parliamentary magic. Here the wife did not claim as heir or devisee, but under a deed from Cachvallader Golden ; and I apprehend, with the counsel for the plaintiff, that no actual entry was necessary in order to enable her heirs to take, or her husband to be tenant by the curtesy.

I am accordingly of opinion that the plaintiff is entitled to recover in both causes.

Savage, Ch. J.

I propose to consider the rights of the parties, at the several different stages of their title.

In 1787, the title to the premises in question, and other lands, is admitted to have been vested in the people of this state. The act of that year, was a conditional grant of these lands to C. Golden in trust for the heirs of D. Golden. The title, however, did not vest until the conditions were performed which was in February, 1790. C. Golden was authorized to sell the lands to reimburse advances, which it was contemplated he would make, and in fact did make. He took the legal estate, and the heirs, only an equitable one. In May, 1790, he contracted to sell the premises in question to Rogers. This contract he had a right to make, and was in fact the only person who could convey the title. The defendant, Johnson, went into possession as assignee under the contract, and acquired an equitable interest in the land ; but his possession was surely not adverse to the true title. He was considered in law, a tenant at will to the owner of the estate, 0. Golden.

Such was the relation of the parties, till the 5th of November, 1792, when C. Golden, who had, in 1790, been reimbursed his advances, put an end to his trust, by conveying the legal estate to the children of D. Golden. Between the trustee and cestuis que trust, there was no difficulty. Their title was the same. Before the conveyance of 1792, they severally held different component parts, (if I may so express it,) of the same title. The legal estate was in C. Golden, while the equitable estate rested in the heirs of D. Golden. His (C. C.’s) acts were valid, and binding upon those heirs; and when he conveyed to them the legal estate, they took it, subject to such equitable interests as the defendant and others had acquired in the lands, by virtue of the acts of the trustee. So far from an adverse possession, which would invalidate the conveyances from C. Golden to the heirs, there existed a tenancy. (4 John. 230.) That relation was transferred from the trustee to the heirs. They might have enforced the performance of the contract, and were bound on their part to give the title on the terms and conditions contained in it.

While such were the relations between these parties, the defendant, Johnson, on the 13th December, 1793, receivéd a deed from. Cooper as attorney for C. Golden. At this time, C. Golden had no interest in the lands; and as the defendants are presumed to have been conusant of the conveyance in 1792, receiving this deed was an act of disloyalty to the true landlords; and may, therefore, be considered with propriety, the commencement of a holding adverse to the title of the lessors.

It is contended, that the execution of the deed is evidence of the performance of the contract by the defendants; and so it would be undoubtedly, if it had been given by the owner of the title in pursuance of the contract. But under the circumstances of this case, the deed of C. Golden can have no more legal operation upon the title of the defendant, than if it had been executed by John Stiles. It evinces, however, an intention to hold under a title hostile to that of the lessors, and is therefore adverse. That a possession taken at first under the true title, may subsequently become adverse, seems to be conceded by several decisions of this Court. (1 Cowen, 610. 18 John. 448.)- And this, I apprehend, is an exception to the rule as we find it laid down in Brandt v. Ogden, (1 John. 156,) that the possession must be adverse in its inception. After the 13th of December, 1793, the defendant claimed the entire title, exclusive of any right in another, and this claim was in hostility to the title of the lessors. Whether Mrs. Cooper had a right of action against the defendant on the execution of the deed to her, in 1792, would depend on the payment of the interest by the defen dant. Supposing that to have been done, which we are warranted in assuming, as the case is silent on the point, it follows that Mrs. Cooper had no right of action against the defendant, until December 13th, 1793, when he disclaimed her title by taking a deed from another, and as respects the rights of the parties, a stranger.

1 assume then, what to me seems undeniable, that on the 13th of December, 1793, the defendant’s possession became adverse, and that the statute of limitations would then have commenced running, but for the disabilities of Mrs. Cooper. At this time she was an infant and a feme covert; and it is perfectly well settled, that if several disabilities exist, when the right of action accrues, the statute does not begin to run, till the party has survived them all. (3 John. Ch. Rep. 138. 1 Plowd. 375.) It is equally well settled, that cumulative disabilities cannot be allowed. Two disabilities were existing when the right of action accrued ; infancy and coverture : and the proviso in the statute gives ten years in which an action may be brought, after such disabilities removed. The last of these disabilities was removed by the death of Mrs. Cooper, in July, 1797. Her infancy had ceased in November, 1796. f

According to the construction given to the statute, (3 John. Ch. Rep. 137,) the party has, in every event, twenty years to make his entry; and if under disability when the right accrues, he has ten years, and no more, after the disability ceases. If twenty years were not to be allowed, and the heirs of Mrs. Cooper were confined to ten years after the death of their mother, their right would have been barred in 1813, though the twenty jmars would not expire till 1817. But as the statute did not intend to place those persons named in the proviso in a worse condition than those who were under no disability whatever, it is a reasonable construction of the statute, that twenty years shall be allowed them at all events. It may happen that this proviso will give to some thirty years, while others, under §imilar disabilities, may have but the twenty years. Such would be the situation of the lessors of the plaintiff, were there no intervening life estate, to suspend further the operation of the statute.

It becomes important, then, to-inquire whether Thomas Cooper was tenant by the curtesy ; and if so, what effect the existence of his life estate has upon the- rights of the parties.

To constitute this estate, four things are necessary: mar-' riage, seisin, issue bom alive, and the death of the wife. The marriage in this case took place on the 7th of April, 1792. According to the view which I have taken, the wife became seised of the legal estate, on the 5th of November, 1792. She- had one child in 1793, and another in 1795; and died in 1797, when the husband’s estate became perfect.

It is objected, however, that the wife could not have that seisin in fact which is necessary to make the husband tenant by the curtesy. It has been settled by this Court in the case of Jackson v. Sellick, (8 John. 269,) that a wife who had the legal title to wild and uncultivated lands, had such a seisin as was sufficient to constitute her husband tenant by the curtesy. Here, however, there was an actual entry by the tenant of the wife ; for it has also been adjudged by this Court, that a purchaser by contract holds as tenant at will. It is immaterial at what period, during coverture, the wife becomes seised; whether before issue or after. Nor is it material, whether the issue be living at the time of the seisin.. So, if the wife be seised, and disseised before issue, yet if she have issue after the disseisin, the husband shall hold as tenant by the curtesy. (Co. Lift. 29, 30.) The husband’s title does not become perfect till the death of the wife, though, for some purposes, it is supposed to commence at the birth of a child. He is then call ed tenant by the curtesy initiate ; but not consummate, till the death of the wife.

Assuming, then, that there was such seisin in Mrs. Cooper as entitled her husband to hold as tenant by the curtesy, it becomes necessary to inquire, whether the existence of that estate prevents the operation of the statute of limitations. In Jackson v. Schoonmaker, (4 John. 402,) it was decided that “ neither a descent cast, nor the statute of limitations will affect a right, if a particular estate existed, at the time of the disseisin, or when the adverse possession began; because a right of entry in the remainder man can-Rot exist during the existence of the particular estate; and the laches of a tenant for life will not affect the party entitled. An entry, to avoid the statute, must he. an entry for the purpose of taking possession; and such an entry cannot be made during the existence of the life estate.1' In that case; the disseisin happened after the tenancy by the curtesy was consummate; and hence, possibly, the peculiar phraseology of the Court, when they say, “ if a particular estate existed at the time of the disseisin, or when the adverse possession began.” I apprehend the doctrine is equally true, that the right of a reversioner or remainderman is not affected by the statute, if the particular estate existed when the right accrued. And the same reason may be given for the one as the other; because the right of entry never existed in him, in reversion or remainder, during the continuance of the particular estate. When did the statute become operative ? Not till the death of Mrs. Cooper, as that event terminated the coverture. But the same event which subjected her heirs to the operation of the statute, consummated the particular estate which precluded them from any right of entry; et impotentia excusat legem.

Before the statute can, by any reasonable construction, be made to operate, there must be some laches on the part of those asserting a right of entry ; and the policy of the statute gives to every claimant at least ten years, within which laches shall not be imputed.

At what period of time, I would ask, was it in the power of the heirs of Mrs. Cooper to have asserted their rights, before 1817, when Thomas Cooper died? Their infancy, I admit, is no excuse for them, as successive disabilities are not allowed. The statute was not operative till the death of Mrs. Cooper. It is true, indeed, that more than twenty years have elapsed since the adverse possession commenced ; and more than ten years since the last disability was removed, which existed when the disseisin took place; but I would ask, when were the claimants guilty of laches ? They were not bound to make an entry, or claim, till the death of Mrs. Cooper. And from that period, till the death of the tenant for life, the law would not permit them to enter. Shall laches, then, he imputed to them? Certainly , not. Whether Golden Cooper was born before or after the disseisin, seems to me not to change the rights of the parties. The lessors of the plaintiff have brought their action within ten years after the operation of the statute upon their claim; and are not barred by it. Having, in my opinion, shown a right to one-fourth of the premises, they are entitled to judgment for so much.

(a) 4 Cowen’s Rep. 587.

(a) Cited sometimes 8 Rep. 35, b. and of some editions, p. 67

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Dissenting Opinion

Woodworth, J. (dissenting in the first cause.)

Iam of opinion that a legal title, to one undivided fourth part of the premises in question, was conveyed to Catharine Cooper, by the deed from Cadwallader Golden, of the 5th of November, 1792. At this time, the possession held under a contract to sell, given by William Cooper, as attorney for Cadwallader Golden, was not adverse; because the purchase rested in contract, and the conditions were not yet performed. An adverse possession cannot commence under a contract to purchase, as has been frequently decided upon reasons fully assigned. The adverse possession of Johnson commenced December 13th, 1793, when Cooper conveyed to him. At that time Catharine Cooper was an infant and feme covert. She died in July, 1797, leaving a son born in 1793, since dead without issue ; and Alice, one of the lessors of the plaintiff, born September 30th, 1795.

The question is, whether the plantiff is bound by the statute of limitations. It is contended that Mrs. S xvartwout had but ten years from the death of her mother to bring a suit; because Thomas Cooper was never tenant by the curtesy; and. consequently there was no suspension of the statute. The argument is founded on this, that it does not appear that Golden Cooper was born before the deed executed to the defendants ; and if he was not, it is contended that there was not such a seisin in the wife as would make the husband tenant by the curtesy; or, in other words, that it must be an actual seisin, after the birth of issue; and that a previous seisin, during the coverture and before issue, is insufficient. 'The law on this subject is otherwise. According to Lord Coke, if a man takes a woman seised of lands, and is disseised, and tuen has issue, and the wife dies, he shall enter and hold by the curtesy. (1 Cruise’s Dig. 107, ch. 1, s. 11. Id. 112, s. 25.) So that whether the birth of Golden Cooper was before the deed of 1793, or not, is immaterial as to the question whether Thomas Cooper was not tenant by the curtesy, at some period during the coverture. Mrs. Cooper did not take as heir or devisee, in which cases it might he necessary for her to make an actual entry, in order to enable her heir to take by descent, or her husband to be tenant by the curtesy. The title was not cast on her by act of law ; but she took under a deed, to which effect is given by the statute of uses; by which she was put in corporal possession, there being no adverse holding at the time. (2 Bl. Com. 312,338.1 Inst. 29.)

But admitting this proposition to be correct, the material point is this: when did the right of entry first accrue; and what were the existing disabilities at that time 1 The answer is, the adverse possession commenced December 13th, 1798. The only disabilities then existing, were infancy and coverture. No tenancy by the curtesy existed at that period; for it is not shown that Golden Cooper was then born. The birth of a child is necessary to constitute this estate. The husband at that moment had no estate that could be continued beyond the coverture ; for, on the death of his wife without issue, the estate would have immediately descended to her heirs. Whether he would ever have a greater right, was altogether contingent and uncertain. He had not even an inchoate right as a tenant by the curtesy; consequently, the proviso in the statute applied to coverture and infancy only; and gave ten years after those disabilities were removed. But the party has, in any event, 20 years to make his entry ; and as Mrs. Cooper died in 1797, four years after her disseisin, the effect of the proviso would be to give her heirs sixteen years after her death. The sixteen years ended in 1813. The law is well settled, that the right of entry is not barred until all the disabilities, existing when the right of action accrued, are removed; that there cannot be cumulative disabilities ; for when the statute first begins to run, all subsequent disabilities are disregarded. It is then evident, that although Thomas Cooper afterwards became a tenant by the curtesy, it does not interpose any additional barrier to prevent operation of the statute. The following authorities establish the doctrine laid down: 3 John. Ch. Rep. 129; 18 John. Rep. 44 ; 8 id. 262 ; 2 Conn. Rep. 27 ; 6 East, 80 ; 4 Mass. Rep. 182: Plowd. 353. As the deed to'the defendant, Johnson, hears date December 13th, 1793, and by the testimony of Cadwailader D. Golden, it appears that Golden Cooper was born in 1793, it is highly probable that his birth was previous to the disseisin. Had this been shown, then Thomas Cooper would have had a contingent estate as tenant by the curtesy; and in the event of his surviving his wife, it would have become absolute. But on the facts before us, I am of opinion that the defendant, Johnson, is entitled to judgment.

Judgment for the plaintiff in both causes.