But as they proceeded mainly on the ground that the claim of the defendant below was bottomed on a grant from, or contract with, a foreign government, which the court here rejected as not arising in the case, the arguments are, therefore, omitted,
RThe defendant in. error made three additional points against the adverse possession of the defendant below,
1. That the papers, under which he claimej, forbid the presumption that he entered under color of title.
2. That he. could not he deemed, to have held under Mao kay. .
(after stating the facts.) The evidence shows continued possession of the lot lay the defendant and his ancestors, for upwards of thirty-fiv.e years, under a claim of title, and against all the world, This .continued possession is strengthened by the anterior possession pf the "father, interrupted only by the incursions of the enemy, and their destruction of his domicil; and it is more materially fortified by the refusal of the elder Fronabois to permit the surveyor of the .claimants under the patent to enter upon the premises, and the subsequent descent cast from the ancestor to the heir. It might, with plausibility at least, be contended,, that the peremptory refusal of the elder Frpmbois to permit the surveyor of the patentees to enter upon the lot, and his open resistance to their claim pf title tp it, amounted to a disseisin • and if so, the descent cast would toll the entry, and the action of ejectment could not be sus? tained. But if it was not a disseisin, it was a decided act pf hostility to the title under which the lessors now claim, It was conclusive proof of an adverse holding. This survey was upwards qf twenty years anterior tp the commencement of the suit, and from that time, if not from an anterior period, the defendant is clearly entitled to date his actual adverse possession against these lessors and those whom they claim. This possession would seem to be elusive. Why, then, did not his defense prevail. The reason assigned by the supreme court is, that he held under a claim of title derived from a foreign government, and that that claim of title rendered his possession unavail? ing.
Circumstan“adverse possession,
Whether a disseision descent
?essoJ g°P" vey by the onteelf^proof an adverse
*It is found by the special verdict, that the premises were held under a' paper writing, which was in tíie possession of the elder La Frombois soon after the revolutionary war, bearing date June 28,176.8, and signed by Franpis kay, purporting to be a permission from' Mackay to La
These documents may be slender evidences of title; but the question is, whether this documentary evidence, slender as it may be, is not sufficient to give a character of adverse possession to the occupancy of La Frombois under it, and to rescue him from the reputation of being a mere trespasser. It is not necessary, to constitute an adverse possession, that ^ should have commenced under an effectual deed. If the . , possessor claims under written evidence of title, and on producing that evidence, it proves to be defective, the character *of his possession as adverse, is not affected by the defects of his title. If the entry is under color of title, the possesskm will be adverse, however groundless the supposed title
In this case, the continued possession of La Frombois is conclusively shown, and the quo animo is apparent from his uniform claim of title, and continued exercise of acts of ownership. The writing produced, admitting it to be
Both fully shown in this case,
In the case of Jackson v. Waters, (12 John. 365,) which is supposed by the supreme court to govern this, it is expressly stated that the claim was under a grant from the French Canadian government, to one La Gauchetierré, prior to the conquest of Canada; and that "fact brought up the question of the validity of a title derived from a French grant in opposition to a subsequent colonial grant, ánd the effect of a possession avowédly taken and held under such a title. But these questions cannot arise on this special verdict. It does not appear by this verdict that La Frombois, the defendant, claimed under a French grant; and we cannot look out of the special verdict for the facts of the case. In the case of Barnes v. Williams, (11 Wheaton, 415,) it appeared by the special verdict that the claim of
The court cannot look out of the .special verdict for the facts.
Barnes v. Williams, 11 Wheat. 415.
Here the facts found do not warrant the conclusion that the defendant claimed under a foreign government.
I do not consider the agreement of Mackay, or the certificate of the surveyor, as furnishing any conclusive evidence of the foreign character of his title. They contain decisive internal evidence of being drawn up by a French scrivener, or in a French country, and with reference to French laws and usages; and the papers are both in the French language. The contract was made at Montreal, and La Frombois, most probably was a French emigrant; and it was to be expected that a contract drawn up by a French scrivener in his own language, should employ the terms which they were accustomed *to apply in the description of grants of land. But be that as it may, the circumstance, whatever might be its relative weight and importance, was matter of evidence for the jury; and if parol evidence could be admitted of a fact which, if it existed, must be of record or in writing, was tó be urged to them as proof of the fact of the French character of the claim.
But it is said that the agreement of Mackay was anterior to the patent to Dean; and that he could not claim under the English government, or if he had any equitable claim under the colonial government, such claim must have been disregarded. Admitting the colonial patent to Dean to be the only legitimate title to the land, it does not follow that
gueh exeeu. toiy _ contract iC0° t¡tiBj °t°0’ found an ad" vgrse possession.
, ¥ the title be in the peopie, it is not ^"years^adverse possesmon'
But astoinfrs^ao years bar
Adverse pos®b”g will not ob-|ration of°Pa
adverse possession for and their grantees.
Mere possession without claim of right will never give title.
Claim of title makes the posverse, however ciMm'may be° and this may be matured by time into a against aifindividual or the people.
andFimprove^ ment, such as wíth.CUownerí will, of itself, ripen into titld less the possessor veebgnize title in tteavow titib in himself.
Now, in the ease before the court, to state it most strongly against the defendant, La Frombois entered prior to the year 177.7, under" a groundless claim originating in ah agreement made before the patent to Dean was issued. This title was without foundation, and á nullity, and the true title was vested in the crown of Great Britain. Ia the year 1769, being about one year after the agreement
If, then, the benefit of the adverse possession of the defendant was not lost by him, by his claim of title under a foreign government, his defence was impregnable; and I am satisfied that this special verdict does not find the fact of a grant of the land by a foreign government, nor any facts justly imputing to the defendant a claim of title under any such grant.
It follows, that the lessors of the plaintiff are not entitled to judgment on the special verdict; and that the defence of the tenant must prevail. My opinion, accordingly, is, that the judgment of the supreme court ought to-be reversed.
Judgment be-reversed!111 bS
I shall render my judgment on the special verdict presented by the record, without reference to facts which may have appeared in any other case. If the jury, in the case we are now deciding, have not found that the plaintiff in error claimed under a grant from a foreign government, I shall not assume that he did so, because, in Jackson v. Waters, it is stated that the defendant in thatcase claimed under patent from the province of Canada.
The decision should rest on the finding in the special verdict.
I do not mean to question the law, as it has been stated by the counsel for the defendant in error, on several material points.
Points conceded to the defendant in error.
*1 admit that a grant from anv other power than that which governed the territory which is now the state of Mew
I admit that the French Canadian government may never pave had authority to grant lands within what are now the limits of this state. .
I admit, also, that if an adverse possession be claimed under a grant or conveyance which never could have been the foundation of a good title, it cannot bar the recovery of one who shows a perfect title.
I believe the law to be consistent with these positions, but I have assumed that it is so without having followed the counsel through that deep research, which their arguments and quotations evinced they had mace, into the history of the European possessions in this country; and as to the extent of the rights which a nation may acquire by discovery or conquest. I do not believe it accessary to settle these points in order to render a correct judgment in this case; because, it is a principle not only conceded by the counsel for the defendant in error, but established by the supreme court in the case of Jackson v. Waters, and in the very judgment under consideration, and by innumerable cases which were cited on the argument, that where a possession is held under a claim of title which is not shown to be bad, and which might be good, it shall, after a sufficient lapse of time, bar every other title.
If I could agree with the supreme court, that this case cannot be distinguished from that of Jackson v. Waters, I might not dissent from the judgment they have rendered in favor of the defendants in error: but, in my opinion, there is an all-important difference between the two cases, as to the very fact on which the respective judgments are founded: that is to say, in the former case it is stated that Francis Mackay claimed under a grant from the French government; and *no such fact is found by the special verdict under consideration. All that is said as to the title of the plaintiff in error, is that, upon the trial, he produced a writing in the French language, dated at Montreal, the 28th of June, 1768, signed by Francis Mackay; by which Mackay gave permission to La Frombois to take possession
The importance of the difference of the facts presented in this case and that of Jackson v. Waters, is marked by the expressions of chief justice Thompson, in rendering the judgment in the latter case. He says, “ The origin of the adverse possession set up by the defendant, was that taken by La Frombois in the year 1763, by permission of Mackay, who claimed under a grant made by the French government of Canada to La Gauchetierre, prior to the conquest of Canada by the British.”
There was another writing which the jury do not say the defendant below produced, or that he attempted to make any title under it; but merely that he had in his possession, at some time or other, such a writing. It appears to be a memorandum, or proces verbal, of a survey made by a person styling himself a sworn surveyor, having a commission from the king of England, and the United States. This instrument, either in French or as it is translated into English, is not very intelligible. I have not endeavored to understand more of it, than to be perfectly satisfied that it can have no possible bearing on the questions which arise in this cause, unless it be to show the extent and limits of the possession of La Frombois. La Frombois the elder, and his heir, had, under the writing first above mentioned, and his long possession, a good equitable title against Mackay, and all claiming under him; for though it may be, as chief justice Thompson *says in the case of Jackson v. Waters, that La Frombois, if he had been out of possession, could not have maintained an action on his title from Mackay; yet, being in possession, and having been so for such a length of time, he could not have been
Then it appears to me that I may adopt the language which the supreme court used, in giving their reasons for their judgment in this case. They say if the defendant he? ¿ad shown a mere claim of title, without "showing w}lat that title was, they would have presumed his title to , . * _ have been a lawful one; and the judgment would have .Q yg fayor_ jn my opinion, this is exactly what the defendant did do. He showed that he entered under Maekay but what Mackay’s title was, whether he claimed under a patent- from the proyince of Canada, from Great Britain, or from the provincial government of New York, there is not _a sentence yi the -finding of the jury which will warrant any conclusion or even presumption.
If a defendant of°tMe\na 20 years adverse court^wm tend the title to be lawful, unless the contrarybe^shown Mon.
To render the same judgment in this case as in the .ease of Jackson and Waters, I must say, with all "that respect due to *the -supreme court, and which I unfeignedly feel, is to give like decisions where the important facts are totally
A father, fifty-two years before his title is questioned, takes possession of lands under a permission to settle himself Upon them, from a person who, he thought, had, and who, for all we know, may have had a right to grant the permission, with an implied promise that the lands, ‘or Other equivalent lands, should be conveyed to the occupants. After being in .possession eight years, he is driven firm his home by the ravages of war. At the end óf sév'en years, When peace is restored, he returns to the possession he had been obliged to forsake, and re-builds upon it a house, which he found had, in his absence, been destroyed. After this, he remains undisturbed thirty-six years, and then dies, transmitting his possession to his son and heir, who occupies the home his father had left him ten Or twelve years more, before his title is questioned. Then, at the end of fifty odd years, and after a descent had been Cast, come persons claiming under a title which commenced more than fifty years before they, or those under Whom they claim, make any legal assertion of their right. In the mean "time, they, that is, those who claim under the patent of 1769, knew of the possession of the ancestor of the defendant below, and of the defendant’s possession and ciaim. In 1798, that is, twenty years before the cause was tried, the father of the plaintiff in error forbid the "surveyors tinder Dean’s patent entering on the premises, --and the surveyors "passed round his lots. From that time, there was an acquiescence -in the claim of the defendant below; at léast there is nothing to the contrary found by the jury. In the mean time, the defendant has been spending his life and labor On the spot he inherited from his father.
Further facta
'Under these circumstances, I feel no reluctance in giving a judgment in favor, of the plaintiff in error. I cannot think the defendant will have-any reason to complain, if the law doés not give effect to :a title on which he has slept more than half a century. “ Vigilantíbus non dormientibus leges subserviunt” My "Opinion -is, that -the judgment be reversed.
In this case it was not seriously questioned on the argument, that there was a sufficient ad u . , . ' ...„. verse possession shown m the p^amtm in error, La From* p0¡S) j¡0 q,ar the action, provided it was under a claim which might be a valid one; and we are, then, first to inquire wpat jn fact was the claim of the elder La Frombois ? 7 1 The special verdict says, that “ at the close of the war in the year 1784, he re-built .his house, and entered into the possession of the premises, claiming them as his own, until the time of his death, about twelve years since, and left the defendant in possession, who claimed as heir at law of his father, and continued in possession up to the com; mencément of the suit,” and in another part, that “he always claimed the land as his own under the writing” set forth. If anything in the law of ejectment is settled, it is, “ it has never been considered necessary, to constitute an adverse possession,, that there should be a rightful title, Whenever this defence is set up, the idea of right is ex-ciu^e(^- The fact of possession, and the quo ammo it was commenced and continued, are the • only tests.” I quote language of the supreme court continued in 9th John. 180, and repeated in 18th John. 44, and in 18th John. 355, where the defendant produced a paper as a deed, which could not operate as such, for the want of a seal. It was held, notwithstanding that his possession of twenty years under a claim of title was. adverse, that he was not bound to produce a deed, and that his claim of title was sufficient without proving it. So, in the case of Jackson v. Woodruff, (1 Cowen, 286,) the supreme court were with the defendant for. the land actually possessed, although the deed under which he claimed did not describe any lands. Woodworth, J., says, “If the title is.bad, it is of no moment; but if no lands are described, nothing can pass. The deed is a nullity, and never can lay the foundation of a good adverse possession beyond the actual improvement.” In the present case, the special verdict finds that La Frombois was in actual possession of the whole of the premises from 1784. Upon these authoriteis, I do not perceive why we are not bound entirely to disregard the
Mt^necessary to an adverse possession.
The only tests are the possesarrimo.11^
Another ground of distinction between this case and ° IT, 1^1 „ . that m 4th John, urged by the counsel for the plaintiff m error, is, that the production of the paper signed by kay was not a claim of title under the French government; and this seems to me to be well taken. There is certainly nothing on the face of the paper to show that Mackay’s ... title was derived from that government. If he did so derive title,-that fact should have been found by the special verdict, unless the evidence be so conclusive that there is no room for doubt that the jury must have found it so. But no such case is presented here; and the plaintiff, who seeks to avoid a title primos fade good, by some matter which entirely destroys it, is most clearly bound to establish that matter beyond controversy. Mo one will pretend that it has been done in this case; no one can say that the paper on the face of it, and that is the only evidence we have, shows whether Mackay derived under the English or the French government.The fact which was supposed by the
, special verdiet should evidenctf06' °r which proves siyeiy.
Though the government110 when the adsion8 beginsj yet the statute of limitations will run upon grantee ofthe gwemment.
the protected not against a prepossessio^for he cannot avail himself of the prerogative.
But the objection is unfounded in point of fact;-for it appears that the patent to Dean and -His associates was-on the 11th July, T769, and the first date given in -the special verdict respecting the possession -of La Frombois, is in 1776. When he entered, therefore, the • tithe was not in the grown of Great Britain.
There is still another view of this case. Admitting that Ba Frombois did not enter under color of title originally, yet we find him, in 1798, claiming the land asffiis-own, and 7 . forbidding and actually preventing the surveyor - under the lessors of the plaintiff bélow'írom cominguponthe premises, Here is a decisive act-of disseisin of the-patentees; an actual ouster and expulsion. (6 John, 217 ; 4 John. 411.) He remained in possession 20 years,' and died,"leaving‘his
We have the authority of this court, in Palmer v. Lorillard, (16 John. 348,) for determining this cause on the last point stated, of a disseisin and descent cast; because it is an objection which goes to the foundation of the action, which the defendant cannot be presumed to have waived by his silence, and which the plaintiff could not have remedied by any evidence, for the proof is already before us in the special verdict, that the defendant was in undisturbed possession until the commencement of this suit, and the plaintiffs lessors, therefore, could not have commenced a suit within a year and a day after the descent cast. In my opinion, the judgment of the supreme court should be reversed.
It is found, by the special verdict in this cause, that La Frombois the elder was in possession of the premises in question in 1776, and that he always claimed the ownership under the writing from Ma'ckay, set out in the verdict.
The facts,
At what time La Frombois entered is not found; but, except a few years during the war, he appears to have remained in possession from 1776 during his- life, and to
The defendant in error claims under Dean’s patent, issue(j by the colonial government in 1769. , In 1769, when the *premises were surveyed under Dean’s patent, La Frombois was in possession, asserting his claim of title, and forbade the surveyors entering upon his premises.
The supreme court, in Jackson v. Ingraham, (4 John. Rep. 182,) decide that a title to lands not derived from our own government, cannot be recognized as valid; and in Jackson v. Waters, (12 John. 365,) it is decided, that an entry, under color of such a title, does not constitute an adverse possession, as against a patent subsequently issued, for it appears in the last case, that La Frombois entered as early as 1768, and the patent issued in 1769.
Jackson v. Ingraham, (4 John. Rep. 182,) and Jackson v. Waters, (12 id. 365.)
The question in this case, I apprehend to be materially different from the one presented in Jackson v. Waters, inasmuch as it is not found in this cause that La Frombois was in possession at the time of issuing the patent; and therefore the doctrine that there can be no possession adverse to the people, is inapplicable.
Wherein this from Jackson v. Waters.
The cases abundantly prove, in the language of the supíeme court in this cause, “ that it is not necessary to constitute a good adverse possession, that it should have been commenced under a deed for the premises; and if the defeasant has a deed, he need not produce it; and further, if on production it proves to be defective, that does not afthe adverse character of the possession; and that the facfc 0f possession, and the quo animo it was commenced, , ’ „ , . „ are the only tests. And one reason or this doctrine of adverse possession is said to be, that the defendant is presumed to have entered, under a title which he had reason to believe, and did believe was a good title.
A deed not esstituto anCad" verse posses-
there be a notd’ be h'todueed.
proves to be defective, this does not presion beino^adverse.
Possession and quo animo are the tests.
Now quo animo did La Frombois enter in this case ? Did he not believe his title to be a good one ? Had he not reason to believe it good ? Perhaps a man better informed, would have had less confidence in such a title.; but I have no doubt he entered upon the premises, at that early day, in full confidence that he was acquiring a possession
And this tho' the title be derived from a foreign government.
(Jackson v. Wafers, 12 John, 365,) contra.
The effect of this reasoning is, to place a person who enters under a claim of title which he may, in good faith, believe to be a good one, in a worse situation than one who enters under no title at all.
I apprehend a person entering under lands without any title, or under a defective title, is as much bound to know that, by the law of the land, he has no good title, as one who enters under a French grant; particularly when the latter enters (as La Frombois did in this case) before any adjudication against the" validity of such grants.
In my opinion, the judgment of the supreme court ought to be reversed.
The only question which was sented by the argument in this case, is, whether the defendant in the court below had such possession of the premises sought to be recovered, as furnished a legal bar to the plaintiff’s right of action.
question,
By the special verdict it is found, that La Frombois, the father of the defendant, was in possession of the premises in 1776, when he was driven off, and his house burned by the British troops, in the ruthless progress of their invasion; after which he joined the American army, and returned at the close of the war in 1784, resumed the possession, claiming the land as his own, rebuilt his house, and continued that possession and claim until his death, about twelve years before the trial; that the defendant succeeded to his father’s possession and title, as heir at law, and so continued until the commencement of the suit in 1820; that La Frombois,, the elder, during his life, and the defendant after his death, had always claimed the land as their own, under one Mackay, an Englishman, who lived near Hew York, from whom the elder La Frombois had a writ
1 Rev. Laws 185.
Such having been the evident policy, and such the plain words of the statute, it would seem, by its very terms, to impose upon the party seeking to recover, the necessity of showing affirmatively his title not only, but that the right to possession under that title has accrued within the time limited by the statute, and that it could therefore make no difference, however defective and groundless was the title or claim of title on the part of the possessor. This appears to me to be the plain and obvious import and effect of the statute; and it was once the established doctrine of the courts, that if there had been no possession in the lessor of the plaintiff or his ancestors for twenty years, the plaintiff would be non-suited, (Run. on Eject. 58, Esp. Ev. 195,196, Balantine on Limitations, 18, Burr. Rep. 119,)
But it has been contended on the argument, and such is the uniform tenor of the decisions, that the possession of the defendant, in order to be available under the statute, must be adverse to the title of the' claimant; and this being conceded, leads to the important inquiry, as to what constitutes an adverse possession. It is a general rule, that every possession of land has the presumption of right in its favor, (10 John. 356,) and this, being a presumption of law, may be contradicted or destroyed by proof; but until it is destroyed, the possession is adverse to any other claimant. The presumption which the law thus raises in favor of the actual occupant, may be destroyed by proof of his having received a lease, or evidence of his having paid rent, or acknowledged the title set up; or it may be destroyed by showing that the occupant entered without pretending to any claim of right whatever; in which case the law adjudges the possession to be in subservience to the legal owner; (16 John. 301;) for he can derive no benefit from a legal presumption, who, by his own acts, shows that the presumption cannot apply ; the fact that no claim of right was made, showing that none existed. Hence, a claim of right is necessary, not because the statute requires it, but because the want of such claim is evidence sufficient to destroy the legal presumption óf right. The quo anima a possession is taken or held, furnishes the test of its character ; and the intention being to be inferred *from cir
Of the possea. case. m
Thus it is well settled, that the possession of one tenant in common is the possession, or enures to the benefit of his co-tenant; and it is equally well settled, that such *possession, if sole, may become adverse to the co-tenant, merely by a public notorious act or claim. (5 Wheat. 124; 7 id. 120.) So it has been held, that a subsequent act may ex
But the "supreme court in this case base their decision upon the authority of Jackson v. Waters, (12 John. 368,), where it is held, that “ the doctrine of that court in relation to adverse possession, is, that it is to be taken strictly, and is not to be made out by inference;” that “ every presumption is in, favor of a possession in subordination to the title of the true owner;” and that a title derived from a French grant, because it was not a valid. source of title, could not be the basis of an adverse possession.
It might, perhaps, be sufficient to deny the applicability of this case to the one under consideration; because it is not found affirmatively, or by inference in the special verdict, that the defendant’s title has its source in a grant of the French colonial government; but with all due deference to the intelligence and learning which adorned the bench of that court at the time that decision was pronounced, and no one feels a higher veneration for its character, or more proud of the lustre it has shed upon our history, than I do, I am constrained to the opinion, that the decision is not the true doctrine of that court, nor is it in accordance with the law of this land. In 10 John, 856, the court, per Kent, chief justice, maintain the doctrine, that a possession for twenty years, under pretense of right, ripens into a right, which will toll an entry; and that every possession has the presumption of right; in 9 John. 180, per Spencer, J,, that it has never been considered as necessary *to constitute an adverse possession, that there should be a rightful title, and that whenever this defence is set up, the idea of right is excluded. The same doctrine is held, per Woodworth, J.,
(Jackson v. Waters, 12 John. 368,) contra.
With a sincere desire to arrive at the truth in the investigation of this case, I am gratified in coming to the conclusion, thait law and equity combine with the best feelings of the heart, to protect, a possession, which appears to have been commenced in good faith, and has been adhered to under privations and sacrifices, with a zeal and "pertinacity that yielded only to a deeper devotion to the cause of our country in the hour of her peril, against a claim which, to say the least of it, has been culpably kept dormant, until it has become too antiquated to find favor at the hand of justice.
I am accordingly of opinion, that the judgment of the supreme court ought to be reversed; and that judgment ought to be rendered upon the special verdict for the defendant.
The lessors of the plaintiff below deduced a regular title under the letters patent to Dean and others; and are entitled to judgment, unless the defendant made out such an adverse possession as will constitute a bar to the action.
It appears to me unnecessary to agitate the question, whether possession taken under a French grant could or could not, under any circumstances, ripen into a perfect title by the lapse of years. My impression is it could not, provided, at the time, the premises were upon territory disputed *by the sovereigns of the two countries, or within the acknowledged limits of the British colonial government. Without this qualification, however, if the cause turned upon that point, I might entertain a different opinion. Mor
As a general rule, where possession is taken under color and continued for twenty years, it bars the action of ejectment; and it is immaterial how defective that title or whether the occupant makes color under a written or parol contract, or even any contract at all.
Possession for dery color 'of title though in titief ejectment.
The defendant having established, as I conceive, a prima facie title, by the length of his possession, it became necessary for the lessors of the plaintiff to show that the possess*on commence(i upon the basis of a title which the defendant was bound to know could not be asserted at law; and it is contended that the testimony introduced by the defendant himself, affords evidence of that fact; or, in other words, that his title set up was of French origin. I cannot so consider it; and in saying this, I intend to confine myself to the finding of the jury in this case, and not to go beyond it. Mackay, under whom the elder La Frombois claimed, was an Englishman, residing somewhere about Eew York. The writing, it'is true, such'as it was, from him to'La Frombois, was in the French language, and contained expressions peculiar to French titles; but Mackay’s title, or claim of title, was not shown; and to presume it of French origin, merely because of the language employed in drawing, or expressions introduced into the contract, would, in my judgment, far exceed the bounds of legal reason. It is a presumption which I should not be disposed to indulge in any case; and especially in a case like the present, where the party comes supported by a possession so ancient and meritorious, so unequivocal in its nature, and so long acquiesced in by the proprietors of *Dean’s patent. It is easy to account why the writing from Mackay to La Frombois was drawn üp in French, and executed in Montreal, consistently with a perfect available possession and claim on the part of La Frombois. The premises were at that time in a wilderness; the nearest place where the business of civilized man was carried on to any consider
It appears to me the supreme court assumed a controlling and governing fact, in no way warranted by the ease, the absence of which distinguishes this from Jackson v. Waters, (12 John. 365;) and, therefore, that this case is not within the application of the rule of law there laid down, admitting it to be correct; and I am accordingly of opinion that the judgment ought to be reversed.
Per totam curiam,
Judgment reversed.
How long soever the possession of parties, and their ancestors, .if it appear that they admit the want of an actual lease, and insist only that they were entitled to one which was to be in fee,' they cannot, after establishing such relation between them and the owner, set up a presumption of actual title, resting on adverse possession. Van Rensselaer v. Van Wie, 23 Wen. 531.
Where the owner of one bank of a river gives permission to the owner of the other side to abut his mill-dam against the bank of the former, the grantee of this privilege or any claiming title from him, cannot set up adverse possession against the grantor. Lace v. Caley, 24 Wen. 451.
A contract for the purchase of land after performance by the vendee of the terms of the contract and the accruing of a right to a deed, is sufficient color of title whereon to base the defence of adverse possession in an action by the vendor for the recovery of the premises. Briggs v. Prosser, 14 Wen. 227.
A possession of twenty-five years under such contract, after the accruing of the right to the deed, authorizes the presumption that the deed was executed. Ib.
A defendant who has entered into possession.of lands, claiming title by deed of an undivided sixth part of an extensive tract, cannot set up an adverse possession to more of the tract than he has under actual improvement or within a substantial enclosure. Sharp v. Brandon, 15 Wen. 697.
A deed fraudulently obtained is not available as the foundation of an adverse possession, so as to avoid a subsequent conveyance. Livingston v. Peru Iron Co., 9 Wen. 511.
So a deed is not available for such purpose executed by a person assuming to act as the attorney of the grantor, but without authority, when such want of authority is known to the grantee. Ib.
To constitute a possession adverse so as to bar a recovery, or to avoid a deed subsequently executed by the true owner, the party, in making his entry upon the land, must act Iona fide; he must rely on his title; he must believe the land to be his, and that he has title thereto, although his title may not be rightful or valid. Ib.
But if the title be an absolute nullity, it will not serve as the foundation of an adverse possession, lb.
Where lands have been held adversely for 20 years, and an entry is made by a party who has the true title, such party may be dispossessed by an ejectment brought by him who had held the premises adversely. Jackson v. Oltz, 8 Wen. 440.
Where a party was in possession of a lot of 600 acres, and appropriated
To constitute ah adverse possession, there must in all case's be'a claim of title; but it is not necessary that a deed should be shown as evidence of such title. Wherej however, there is no pápér title', there must be ajpedis posses• sib—an actual occupancy—a substantial enclosure. Ib.
Where a party claims to hold adversely a whole lot by proving actual occupancy of a part only, his claim must be under a deed or paper title; and where color of title is shown, occupancy of part for' 20 years is enough to entitle a party'to recover a'whole lot, unless the deed under which the claim is made" includes a tract greater than is necessary for the purpose of cultivation'or ordinary" occupancy. Ib.
In ejectment, where the defendant produces no written title, but relies solely oh pósséssioñ with an assertion of title, he can retain so much only as "be bas under actual improvement, and has been in "possession of for twenty years. Jackson v. Warford, 7 Wen. 62.
Where ¿"party has béeii in" possession of land for'thirty-five years," claiming it as his’own, and had built a barn upon it¡ and where'the owner, who resided within sixty" miles of the premises, instead of asserting "his claim, embarked in the service of the Northwest Company, in Canadá; for twenty years, and suffered eighteen years to elapse after his return before bringing suit, and the" original letters patent were found in the possession of the occupant of the premises; it was held, that the facts and circumstances were" such as would have1"warranted the presumption of a conveyance to the occupant." Ib.
A possession under a quit-claim deed obtained from a naked possessor without color or claim of titlé, and no valuable consideration paid, is hot such ah adverse possession as renders void a deed from the owner to a 5ova fide purchaser,' execdtód'duting "the" continuance of such possession. Jackson v. Hill, 5 Wen. 532.
If a party in possession of land to which he has title, offer to purchase from another" whb "claims the property, such offer does not impair or affect the right of him who made it, though it would bar a defence, on his part, of adverse possession'. Jackson v. Britton, 4 Wen. 507.
Where a" person eñtéred" into tbépdssessióh of land belonging"to his father-' in-law, who' promised to give"the land to him and his wife, and subsequently" by will devised the same to the wife, it was held, in an action of ejectment brought'by the heirs’of the "wife, that a possession of thirty-six years con
A claim under an executor’s contract to convey land, the consideration being'paid, and which a court of equity would therefore enforce, is'a sufficient claim under color of title. La Frombois v. Jackson ex dem. Smith, 8 Cow. 689; Clapp v. Bromagham, 9 Cow. 530.
(The case" of Jackson v. Johnson, 5 Cow. 74, overruled.)
But a person entering under a contract, is not'in a condition to hold adversely, until he have performed the condition necessary to entitle him to a deed. Jackson ex dem. Young v. Camp, 1 Cow. 605.
Though one enter* as'the committee'of a" lunatic, a subsequent sale to another by such committee, and" claim of title absolutely by the purchaser, changes the" character’of its" possession, and makes it adverse. Clapp v. Bromagham, 9 Cow. 530.
Though the possessor'claim under written evidence of title, and on producing that evidence it prove to be defective, yet the character" of his possession as’adversé, is n'ot affected by the defects of'his title! Ib.
If the entry is under color of title, the possession will be adverse, however groundless the' supposed title may be. La Frombois v. Jackson, 8 Cow. 689.
Entry atid possession under a deed granting' the possession and improvement of1 lands, With" words of inheritance, will be sufficient to constitute an adverse possession. Jackson ex dem Sitzer v. Waltermire, 7 Cow. 353.
To* constitute such' an adverse possession as will bar a right of entry, it must be accompanied with what the law will consider, prima facie, a good title! Jackson ex dem. Ten Eyck v. Frost, 5 Cow. 346.
Atf’entry"upon’ and possession of land upon the claim that it is a gore between two patents," will not constitute an adverse possession. Ib.
The declaration of a tenant is inadmissible to show" in what character he claims; as that he claims adversely. Ib.
The right of a tenant, or one claiming under him, to set up an adverse possession; does not depend upon the landlord’s right to receive rent,-,but-upon his power to enter. Failing v. Schenck, 3 Hill, 344.
Accordingly! where the defendant in ejectment set up an adverse possession in one who, as was shown, entered under the plaintiff’s ancestor by vir tue of "a lease for years, reserving an annual rent; held that the lease wat sufficient to repel the defence, though the circumstances were such as to warant the presumption of an extinguishment of the entire rent-shortly titer the term commenced. Ib.
"Wheré a grantee enters into possession of land -under-his deed, and after-
Possession of land by a purchaser under a deed for the entire lot, given without right in the grantor, is adverse in the rightful owners, though tenants in common with the grantor; .and a subsequent deed, executed by them during such adverse possession, is void; and subsequent releases by the other tenants in common to the grantor of the defendant, enure to the benefit of the defendant. Preston v. Smith, 13 J. R. 406.
Where A. entered into possession without title, and afterward T. covenanted to give him a deed. A, assigned the contract to S., who received a deed from T., and afterward a deed from B., the patentee. Held, that the original possession of A., being without title, was to be deemed the possession of B., and that the possession of S., under the covenant, was not adverse. Jackson ex dem. Sharp v. Bonnel, 9 J. R. 163.
A claim and color of title is necessary to constitute the possession adverse. Humbert v. Trinity Chwrch, 24 Wen. 587; Jackson en dem. Dunbar v. Todd, 2 Cai. R. 183; Jackson ex dem. Young v. Ellis, 13 J. R. 118; Smith ex dem. Teller v. Burtis, 9 J. R. 174; Jackson ex dem. Roosevelt v. Wheat, 18 J. R. 40; Jackson ex dem. Vanderlyn v. Newton, 18 J. R. 355; La Frombois v. Jackson ex dem. Smith, 8 Cow. 589; Jackson ex dem. Ten Eyck v. Frost, 6 Cow. 346.
But it is not necessary that it should be a legal and valid title. Jackson ex dem. Dunbar v. Todd, 2 Cai. R. 183; Jackson ex dem. Young v. Ellis, 13 J. R. 118; Jackson ex dem. Gilliland v. Woodruff, 1 Cow. 276; Jackson ex dem. Young v. Camp, 1 Cow. 605; La Frombois v. Jackson ex dem. Smith, 8 Cow. 589; Clapp v. Bromagham, 9 Cow. 530.
It is sufficient, if it destroy all presumption that the defendant is in possession under the plaintiff. Ib.
And it must be exclusive of any other right. Humbert v. Trinity Church, 24 Wen. 587; Smith ex dem. Teller v. Burtis, 9 J. R. 174; Jackson ex dem. Roosevelt v. Wheat, 18 J. R. 40; Jackson ex dem. Vanderlyn v. Newton, 18 J. R. 355.
And the defendants must uniformly, continuously and notoriously have been in possession adversely, for a period of twenty years before bill filed. Humbert v. Trinity Church, 24 Wen. 587.
One claiming under a deed from a judgment debtor, has not such an adverse possession as will avoid a conveyance executed, by a purchaser under an execution upon the judgment. Jackson v. Collins, 3 Cow. 89.
No deed or any equivalent muniment is necessary where the possession is indicated by actual occupation, and any other evidence of an adverse title exists. Humbert v. Trinity Church, 24 Wen. 587.
But whether possession with claim of title under a parol gift of land from the owner, will constitute an adverse possession? Jackson ex dem. Bradt v. Whitbeck, 6 Cow. 632.
Where a tenant from year to year, takes a lease from B., the act is void, and cannot work an adverse possession against A. Jackson ex dem. Williams v. Miller, 6 Cow. 751.
Nor will a conveyance by a tenant operate as the basis.of a possession adverse to the landlord. Jackson ex dem. Webber v. Harsen, 7 Cow. 323.
And it is immaterial whether the landlord know of such conveyance or not lb.
It is sufficient at the trial to show that the party took possession claiming under a deed, without producing his deed. Jackson ex dem. Roosevelt v. Wheat, 18 J. R. 40; Jackson ex dem. Vanderlyn v. Newton, 18 J. R. 355.
And if the deed be produced, and is found to be defective, it is still sufficient to support the adverse possession. Jackson ex dem. Vanderlyn v. Newton, 18 J. R. 355; Jackson ex dem. Krom v. Brink, 5 Cow. 483; La Frombois v. Jackson ex dem. Smith, 8 Cow. 589.
And if a party, supposing there was a defect in his deed, apply to others claiming under a subsequent deed to purchase, for the purpose of strengthening and quieting his own title, it is not an abandonment of his own titlq, nor acknowledgment of a superior title in another. Ib.
But repeated application by the person in possession to purchase the premises of the person holding the legal title, affords a presumption that he entered under the latter. Jackson ex dem. Russell v. Croy, 12 J. R. 427.
When a person in possession covenants with another, to pay him for the land and receive a deed from him, he cannot set up an outstanding title in another or in himself, without showing that he had been deceived or imposed upon, in making the agreement. Jackson ex dem. Brown v. Ayres, 14 J. R. 224.
Attornment by tenants to the person in possession without title, will not
A. entered into possession of land under a lease in fee, in 1116, and in 1118 gave the land to her son B. by parol, who entered into possession, and continued in possession, claiming under the lease until 1198, excepting the period of the revolution, and a year or two afterwards; and B. conveyed to C., and 0. to D., who conveyed to the defendant; held that it was a sufficient adverse possession to bar a suit commenced in 1801. Jackson ex dem. Colden v. Moore, 13 J. R. 513; New York Digest, pp. 31 to 35, inclusive, Nos. 1 to 51, inclusive.