McCormick v. Barnum, 10 Wend. 104

McCormick v. Barnum

10 Wend. 104 | N.Y. Sup. Ct. | 1833

By the Court,

Savage, Ch. J.

The provisions of the revised statutes upon which the decision of the circuit judge was founded, are the following: it is declared that “ no action for the recovery of any lands, tenements, or hereditaments, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plain dig his ancestor, predecessor or grantor, was seized or possessed of the premises in question, within 20 years before the commencement of such action.” 2 R. S. 293, § 5. The seventh section provides that an entry shall be made within 20 years after the right descended or accrued. The eighth section recognizes 20 years adverse possession as a good bar. And the forty-fifth section of the same title, p. 300, declares that “ the provisions of the preceding articles of this title shall not apply to any actions commenced, nor to any cases where the right of action shall have accrued, or the right of entry shall exist, before the time when this chapter takes effect as a law; but the same shall remain subject to the laws now in force.” At page 303 are the following sections : “ The action of ejectment is retained and may be brought in the cases and the manner heretofore accustomed, subject to the provisions herein after containedand “ it may also be brought, first, in the same cases in which a writ of right may now be brought by law to recover lands, tenements or hereditaments ; and by any person claiming an estate therein, in fee or for life, either as heir, devisee or purchaser.” The effect of all these sections is, that though twenty years adverse possession are, as formerly, a bar to the action of ejectment, proper, if I may be allowed the expression, yet where ejectment is brought as a substitute for a writ of right, then £5 years are necessary to bar such suit. And such substituted action may be brought in all cases where the right to bring a writ of right existed when the revised statutes took effect, and subject to the same limitation as a writ of right. I apply this doctrine to this case thus: it appears in evidence that the defendant took actual possession under a written contract *109for the premises in question in October, 1805. Twenty years had expired in October, 1825 ; but the right to bring a writ of right existed until October, 1830, that being the expiration of the 25 years. By the revised statutes, therefore, the plaintiff had . , . . , . . . . , . , r . , a right to bring ejectment at any time within the same period.

The next ground of defence is acquiescence by the plaintiff in the line run by Copely. In relation to this point of defence, it is insisted by the plaintiff’s counsel that the declarations of Baker, who is dead, were improperly received in evidence ; on this subject the rule laid down by Phillips, in his Treatise on Evidence, vol. 1, p. 82, N. Y. ed. 1823, is that the declarations of an agent must be confined to such statements as are made by him either at the time of his making an agreement about which he is employed, or in acting within the scope of his authority. Within this rule the acts and declarations of Baker were properly admitted. He had been employed by the plaintiff’s agent to run the line, which he did do, and declared Copely’s line correct, adopted it and allotted the north part of the township upon it. The acts of Baker must, therefore, I think, be considered the acts of the plaintiff. The question then arises, whether the acts and subsequent acquiescence of the plaintiff are conclusive upon him. Cases of this description have been frequently before the court. The principle upon which they have all been decided, is this : that where parties agree upon a division line, either expressly or by long acquiescence, such line shall not be disturbed; buildings and permanent improvements may be made upon the faith of the location of the line; transfers may be made; and to permit such lines to be altered might be productive of incalculable injury. In Jackson v. Ogden, 7 Johns. R. 283, where there bad been an acquiescence of 18 years, the plaintiff was held to be concluded. In Jackson v. Freer, 17 Johns. R. 29, the actual location was held to prevail where there had been a possession of more than 20 years. The patent in that case had been surveyed into lots by direction of the surveyor general. Ch. J. Spencer says, the survey of the lots and the actual location of them was the joint act of all the parties interested, and must control. In Jackson v. Widger, *1107 Cowen, 723, it was held that a surveyor who settled a line for the plaintiff was his agent for that purpose; and though not correct, the plaintiff was concluded after 20 years acquiescence. The same doctrine as to location and recognition has been recently asserted by this court in the case of Rockwell v. Adams, 7 Cowen, 701, and 6 Wendell, 467. There the line had been acquiesced in for 18 years, and frequently recognized by the defendant and those from whom he derived title. The defendant was held to be concluded by it. In the case now before us, the line was run first by Copely, and after-wards by Baker, the plaintiff’s surveyor, and for that purpose his agent. It was acquiesced in for more than 20 years. The defendant had early built an house upon the premises in question, and the plaintiff’s agents must have seen it. There is clearly, therefore, such a recognition and acquiescence as should bar the plaintiff’s claim.

New trial denied.