Jackson, ex rel. Shaw v. Speak
7 Wend. 401
N.Y. Sup. Ct.
1831
Check Treatment

By the Court,

Nelson, J.

The charge of the judge was correct, and proper on the assumption that Jacob Spear was actually in possession of the premises at the time of his recognition of the title of Winter, and agreement to purchase, for it would be unreasonable to preclude a defendant from shewing that the plaintiff had no title, or that he himself had the title to the premises in question, if the acknowledgment of the title of the plaintiff was produced by imposition, or made under a misapprehension of the rights of the respective parties, Jackson v. Cuerden, 2 Johns. C. 353 ; but I apprehend that there was another very material question, growing out of the facts of this case, which should have been submitted to the jury, and which was not embraced in the view of the case presented., to them, viz. whether or not Jacob Spear entered *404into possession of the premises under the contract to purchase mac^e with Winter, and consequently under Winter’s title. If he did so enter, he and those succeeding to his possession are Precluded from denying Winter’s title, until they have surrendered the possession thus obtained. 3 Johns. R. 499. 7 id. 157. 14 id. 224. 7- Cowen, 637. The evidence, which was somewhat contradictory, should have been submitted to the jury to determine under what title Spear entered; and they should have been instructed, that if they found that he entered under Winter’s title, that the plaintiff was entitled to a verdict ; but if they found that he did not so enter, then the view taken by the judge was proper as to the effect of the negotiation for the purchase by Spear, while in the possession and occupation of the premises.

New trial granted.