24 Wend. 220 | N.Y. Sup. Ct. | 1840
By the Court,
No title in either party having been proved by direct evidence, the stress of the controversy at the trial lay upon the possessions under which the parties respectively claimed. Of the defendant’s general possession and that of those under whom he claimed for a period sufficient to satisfy the statute of limitations, no doubt was made; indeed such possessions were admitted at the trial—their character alone "was disputed. Of the prior possession of Arnout Webbers, there was very little direct evidence ; but what there was, when connected with the deed of 1807, from all his heirs except John, to Balcewell and Kinder, made out a very strong circumstantial case in favor of the possession; and I think entirely warranted the learned judge in the assumption, that it was made out, by which he introduced his charge to the jury. The defendant [ *224 J claims *under Balcewell and Kinder; his title being derived from nothing beyond quit-claim deeds coming down from Medcef Eden, who appears to have succeeded Philip Webbers in a possession which he took from his father Arnout. Certainly there is nothing, as the judge remarked, to show an abandonment of possession by Arnout or his heirs; at least no direct evidence. The possession of Arnout was prima facie evidence of a fee in him, and it came in a course of regular transmission, either by devise or descent to his heirs, seven of whom quit-claimed to the predecessors of the defendant in 1807. This is the same, in legal effect, as if the defendant had taken that deed to himself; and leaves it difficult for the mind to resist the idea that all parties considered Arnout as one having held the prior title. Such an act amounts to a clear concession by the defendant himself that he must look to Arnout Webbers, not Medcef Eden, as the source of his title. It sanctions all that could be inferred from the plaintiff’s witnesses on the head of Arnout’s possession, and superadds a virtual admission that he claimed a fee.
This deed to Balcewell and Kinder, when viewed in connection with the other evidence in the cause, was also -properly treated as having another effect. It fastened on them and their successors the character of co-tenant with the plaintiff and his ancestor, in the proportion of seven parts in the
I am aware of no cases either in this or any other court ¡which stand opposed to the views I have expressed. The better opinion is, that mere general possession of land or other property, even without explanation, must be received as prima facie evidence of absolute ownership. To this point I collected several authorities in note 309, 1 Phil. Ev. p. 853, 354, of the Notes by Cowen & Hill. I shall not go over them; for the doctrine is not now denied. It must, then, be taken as a fact presumptively established, that Arnout Webbers was, in his life time, the owner in fee simple; his heirs followed ; and it cannot, as the defendant’s counsel seems to suppose, be overcome by the subsequent possession of Eden and those who followed him, even though that were adverse, short of 25 years. It is, till that time, but possession against possession, and the one prior in time must prevail. Whitney v. Wright 15 Wendell, 171, is relied upon as.showing that an abandonment by the prior possessor will destroy the force of the presumption in his favor; and no doubt he may sogconduct himself as to neutralize the force of the presumption and turn it in favor of his successor, as my brother Bronson thought he had done in that case. Almost any presumption may be rebutted ; but I am still at a loss for the circumstance in the case at bar, which can give application to the' doctrine. I find no proof that Arnout Webbers or his successors ever doubted their title. I must deny that the negative fact of delaying a legal assertion of it can operate as an abandonment short of the time required by the statute of limitations Abandonment cannot be predicated of a prior possession till its force as evidence is gone; and that is the idea which the word is intended to express.
The difficulty of seeing that any thing like an answering adverse possession was^made out, after the character of co-tenant with the plaintiff and his privies attached, is fully demonstrated by one of the books relied on in behalf of the defendant. Walworth, chancellor, in Butler v. Phelps, 17
The case at bar comes entirely short of the protracted and exclusive possession in Doe v. Prosser, with the unbroken silence appearing in that case. The lapse of time was there very great, and the silence entirely unaccounted for. Here it barely exceeds twenty-five years ; and there was, at least one very decisive step towards a claim, an actual entry under claim of title within that time. I am not prepared to admit that the judge was bound, under such circumstances, to leave the question of a bar by adverse possession to the jury. The rule is laid down too broadly in the marginal note to Jackson ex dem. Jadwin, v. Joy, 9 Johns. R. 102. All the court say there, is, that the circumstances relied on to show an adverse possession were, in that case, proper for the jury. The note lays down the rule in the abstract, as if the question must be left to them whenever it is raised, however decisive the testimony. The book proves no more than the others cited by the counsel for the defendant: that where the question [ *227 3 to be decided, *whether it be adverse possession or any other, is left in serious doubt upon the circumstances proved, it belongs to the jury. Benham v. Cary, 11 Wendell, 83. Read v. Hurd 7 id. 408. Chesapeake and Ohio Canal Co. v. Knapp, 9 Pet. 567. It is equally clear that where the facts are plainly established, and to these the legal rules of presumptive evidence, are obviously applicable, and raise an obvious result, the judge may tell the jury so, as he seems to have done in this case, with, out incurring the imputation of an attempt to transgress the line which divides his duty from theirs. The same remarks are, I think, applicable to what he said of Arnout Webbers’ possession, and the objection that the ju
There were some points raised upon the admission of evidence which call for notice. The objection now made to the certificate of acknowledgment appended to the deeds of lease and release from John Webbers to Joel Northrop was not raised at the trial in its present form, and therefore cannot be noticed. At the trial, it was general that the execution of the deed was not well proved ; here it is, that the certificate omitted to assert knowledge or proof of the grantor’s identity. If there be any- [ *228 ] thing in this, and it had been mentioned at the trial, farther proof might have been given. Norman v. Wells, 17 Wendell, 136, 142. I do not therefore stop to inquire whether, at that early day, the identifying clause was requisite.
An objection was made to the reading of Arnout Webber’s will, on the ground that the plaintiff and those under whom he claimed not having been in possession, it could not be received as an ancient muniment of title. This was true when the will was offered, and I think the defect was not, in the respect mentioned, supplied by the subsequent evidence. The will purported to be a devise to the heirs at law in general terms ; and whatever may be said of the parties having a possession which might have been connected with the will we can no more impute it to that, than to the right of general inheritance. It is entirely equal, whether the claim and possession that followed was founded on one or the other. Why it should have been thought important, I am at a loss to conceive ; for the plaintiff’s title was good without it, and seems to be based rather on inheritance than devise. As an act of ownership by Arnout Webbers, it is equally a non sequitur, for it asserts no title to the premises in question, nor could it be made so to speak without proof that the devisor had no other real estate ; whereas it was in proof that he had. However, though there was no possession by which the will could
It is impossible, however, to maintaiú that the declarations of Hannah Van Orden were admissible to affect the defendant. It is said she was one of his grantors, and so whatever she said of her ancestor’s possesssion or ownership is receivable. That would be true, if her declaration had preceded her grant. But the latter was made in 1807, and her declaration not until 1812 or 1813. She was then a mere stranger. It is entirely settled [ *230 ] that a grantor’s declarations *after he has parted with his title,
New trial denied.