32 N.J.L. 239 | N.J. | 1867
The opinion of the court was delivered by
The premises in dispute are situate in New Brunswick, at the corner of Albany and Neilson streets. The plaintiffs are the heirs at law of John D. Outcalt, deceased, and claim title by a deed from Abraham Cruser, sheriff of Middlesex county, to the said John D. Outcalt, dated June 6th, 1836. The sale was made by the sheriff under an alias fi. fa., issued out at this court, tested of the Term of November, 1833, upon a judgment confessed by John Outcalt, the father of John D., to John H. Disborough, on the twelfth day of October, 1825. The premises were levied on and sold as the property of John Outcalt. It in no way appears that John Outcalt. ever had any deed, in fact, but the case for the plaintiffs rests entirely upon the claim of an ádverse possession for over twenty years' previous to the date of the sheriff’s deed, and running back beyond the date of the judgment. John Outcalt died in 1853, and John D. died in 1855. John D. had no actual possession. John Outcalt continued to receive the rents and profits from the date of the sheriff’s deed to the time of his death ; but the plaintiffs allege that he was permitted to do this by his son, John D., for his support and that of his family.
John Outcalt, or Judge Outcalt, as he is called, may have been in possession, either in right of his wife or in his own right. The defendants are not able to produce any deed to Van Tine, but they allege, either that it is lost, or that it wrongfully came to the possession of John D. Outcalt, and is wrongfully withheld by the plaintiffs, if they have it. This deed, the defendants say, was made by John W. Moore, the-owner of the property, to Samuel Van Tine, in the year 1801 or 1802. The existence of that deed was one of the questions in the cause, and another was, supposing such a deed to have been made, whether John Outcalt’s possession was adverse to it, in his own right, or whether he held only in right of his wife, by the gift or permission of her father.
The defendants proved, by Nicholas Booraem and Jacob B. Gaddis, certain declarations of John Outcalt, made in the years 1832, 1833, and 1835 — between the date of the judgment and the sheriff’s sale — as follows: Booraem testified that on the second day of February, 1835, he “heard John Outcalt say, that John W. Moore gave the deed to Samuel Van Tine, and that he, John Outcalt, had that deed once in his hands.” Gaddis testifies, “that in 1832 or 1833, John Outcalt told me of a deed; he said the property was purchased. by Samuel Van Tine from John W. Moore; he said he had no title to it;” “ that the only title he had to the property was through his wife.” He also testified to a conversation in his presence, between John Outcalt and Thomas Letson, in the spring of 1832 or 1833, in which “John Outcalt said the property belonged to Samuel Van Tine, who purchased it; that he, Letson, was cognizant of the same fact.” Also, that he said, “I have no right to the property except through my wife.” Also, that “ he said the deed
Evidence was also produced of the acts and declarations of John Outcalt, from about the year 1832 to (lie, date of the sheriff’s deed, to prove that lie claimed the property as his own, rented it in his own name and right, and considered and treated it as his own. This class of evidence was also continued, covering the whole time, from the sheriff’s deed to Judge Ontcalt’s death, the only difference during this time being that the plaint ills claimed that, while the continuing occupancy of John Outcalt, up to his death, was adverse to everybody else, that, so far as John D. Outcalt was concerned, it was by his permission. In brief, the whole scope and object of this testimony was, to make out, by the acts and declarations of John Outealt, a continuous adverse possession, from the date of the judgment to John Outcalt’s death; and also, by these same acts and declarations, to give the same character to his possession previous to the judgment. This suit was brought in the year after Judge Outealt died. Whatever rights he had as husband then ceased, as to him or his creditors, and there could be no ground of recovery by the plaintiffs, unless they could show a title in fee in Judge Outealt, upon which the judgment
But apart from this question of strict legality, I should be unwilling to disturb the verdict, if the evidence had been of doubtful competency. The defeudents showed that John Outcalt and his wife, and Daniel W. Disborough and his wife, Jane, she being a daughter of Samuel Van Tine, lived upon this property in 1809 or 1810, and continued there together till about 1815 or 1816, when Disborough and his wife left. Judge Outcalt and his wife continued to live there till about the year 1821 or 1822. The plaintiffs, in their rebutting evidence, recalled James A. Priestley, who said he thought Judge Outcalt was in possession as early as 1804 or 1805, and that Disborough and Ids wife were not living there then, but did afterwards. The defendants produced a deed for the premises from Perez Rowley and wife to John W. Moore, dated March 14th, 1801, recorded in' the Middlesex clerk’s office, April 9th, 1801. It recites that Rowley purchased of James Drake and Frederick Van Dyke, by deed dated August 10th, 1798. The testimony is satisfactory that Perez Rowley was in possession as owner, and lienee Moore, by his deed became the owner. The defendants also offered a deed from John Outcalt and Hannah, his wife, to Abraham Blauvelt, dated May 4th, 1802, recorded in Middlesex clerk’s office, October 22d, 1802, which describes the beginning place of the lot therein conveyed, as “ beginning on Queen street, at a fence on the southerly side of ,a brook or run of water, being the southerly corner of Samuel Van Tinés lot,” and the last course as “ thence along Queen street a northerly course forty feet, to the fence and lot of Samuel Van line, and place of beginning.” This lot, it is proved and admitted, lies to the south, adjoining the disputed prem
She also says that her husband did not ever have the deed, that he had nothing to do with it; that the last time she saw it, Avas down in Spotswood, at Samuel Overton’s. This was at the mill in Spotswood. Margaret Overton, the widow of Samuel Overton, and daughter of John Outcalt, testifies that in 1833 she saw, at the mill at Spotswood, a deed to Samuel Van Tine, from John W. Moore, for the property in question ; that she wanted the papers moved out of a closet, and her husband removed them, and pulled out the deed from among the other papers; that she saw her grandfather’s name Avas on it. “Samuel Van Tine’s and John W. Moore’s name Avas on it;” “ihat the deed was brought there when mother moved from New Brunswick to the mill; that her father Avent first, and had the mill fixed, and then her mother came and brought the papers; that the deed was kept at the house in Spotswood.” This Avitness lived Avith her father and mother,'at Hew Brunswick, and moved with them to the mill, she says, in 1822 or 1823. She married about two years afterwards, and after being aAvay awhile, returned to her home, Avhere she and her husband continued till and after her father and mother went to live
Samuel Van Tine died in 1818, and the only witness who gives us any light as to how Judge Outcalt, with liis wife, came to live upon the property, is Hannah Outcalt. She appears to be credible, and there is no fact in the case to justify a jury in disregarding her testimony. The additional evidence of Mrs. Overton goes to confirm her statement, and the recital in the deed from John Outcalt, in 1802, is very strong evidence as to Van Tine’s ownership at that time. The fact that under the first fi. fa. issued upon the judgment at its date, there was no levy maje upon this property, and no levy made until the fi. fa. of 1833, is also strong corroborative evidence that Hannah Outcalt was considered the real owner, or rather that John Outcalt was not, previous to 1833. Taking, then, this testimony of Hannah Outcalt as true, it appears that she and her husband entered into possession under a parol gift from her father, and that he permitted them to occupy it, as the property of the wife. A possession entered into, in right of the wife, by the permission of the father, although the husband, as such, would be entitled to enjoy it as long as the father permitted, could not be taken advantage of by the husband to the prejudice of his wife. His possession was only through her, and he could not, by any act of his own, against his wife, change it
This view of the case also disposes of the objection that the defendants did not set out in their' bill of particulars, furnished under the fifty-sixth section of the “act to simplify the pleadings and practice in courts” — Nix. Dig. 671
The rule should be discharged, and judgment entered for the defendants upon the verdict.
Rev., p. 329, § 25.