25 Wend. 389 | N.Y. Sup. Ct. | 1841
By the Court,
R. Bond, the elder, was in possession and
The defendant stands in no better condition that Samuel and Joseph, and the main question is, whether they could set up an outstanding title under the circumstances of the case, to defend a possession, thus acquired in common with the other children, to the exclusion of the latter. I am of opinion they cannot; they must first surrender possession, and assert their subsequently acquired title, if they have one, by ejectment.
The rule of law, that a persen coming into possession of lands under the agreement, or license of another, cannot be permitted to deny the title of the latter, when called upon to surrender, is of almost universal application. Even if he had a valid title at the time, he is deemed to have waived it, and as between the parties to have admitted title in the person under whom he entered, 7 Cowen, 637 ; 3 Ad. & Ell. 188 ; 2 Id. 17. In one of these cases, the K. B. held, that the rule applied to the case of a license to enter for a temporary purpose. Denham, Oh. J. said, the defendant thereby waived any title which she might previously have been able to assert: she held possession through a license, whether for a longer or shorter time, was immaterial. She cannot claim against the party by whom she was let in: that party, as between them, has the title. Applying this principle to the case before us, how does it stand. The ancestor takes possession of a farm, occupying and improving it for thirteen years, and then abandons it to his wife and children. They continue the like occupation and enjoyment till .the daughters are married, and the mother dies, leaving the two-sons remain
It was strongly urged by the learned counsel for the defendant, that a person in possession may purchase in an outstanding title, for the purpose of strengthening his own, and that Samuel and Joseph had done nothing more. The principle I admit to the fullest extent, with this qualification, namely: that the possession has not been taken under circumstances that preclude him from disputing the title of the party claiming. The rule to which I have already adverted necessarily annexes this exception. No doubt the title of the church may. have been taken for the benefit of the widow and heirs, with a view to quiet their possession. There is nothing in the case, or in the relation in' which the parties stand, that could interfere with such a step.
What I contend for is, that one of the co-heirs having desired his possession from the common ancestor, as well as through his co-heirs, is disabled while standing upon this possession from disputing their title. I do not deny but the title thus attempted to be set up may be valid, nor but that the party may avail himself of it after surrendering this possession^ In a court of law, he clearly could. There might be considerations existing between the co-heirs that would lead a court of equity to declare the purchase to have been made for the benefit of all, upon proper terms. This is evidently the inclination of the mind of Chancellor Kent, in Van Horne v. Fonda, 5 Johns. Ch. R. 407.
. The case of Jackson v. Streeter, 5 Cowen, 529, involved the very point now in controversy. The reporter states correctly the principle decided ; that where one takes by descent as a co-heir and tenant in common, in ejectment by his co-heir or one claiming under him, he cannot shew the ancestor had no title. There the ancestor died in possession, leaving four children, of whom the defendant, who had remained in possession, was one. The lessor had acquired the interest of two of the others ; and one ground of defence was, that the ancestor had no title ; the offer to prove which, [ *394 ] was rejected, *and sustained on the principle already stated. The same doctrine will be found in The Proprietors of Baintree v. Battles, 6 Verm. R. 395, where the court say, it is very, clear that it is not com
Now, the case of the plaintiffs here combines in itself, every consideration upon which the principle above applied stands, and something more. The plaintiffs here not only proved a right to a portion of the title, under which Samuel and Joseph entered, paramount to them, but for a long time Angelica, one of the plaintiffs, possessed and enjoyed in common, all acknowledging the common source. Upon the above case, the fact that they entered and held under the ancestors title, and she shewing a paramount right to a share of it, would be enough. Having acquired their possession under it, they are not permitted to gainsay the title to the prejudice of one, claiming a better right to a portion of the property.
I admit that Samuel and Joseph might oust the co-tenant, and defeat her recovery by an adverse holding for twenty-five years, no disabilities existing; and that they might show the purchase of an outstanding title as part of the evidence in making out this defence. It would go to characterise their possession as hostile and adverse. But this stands upon an entirely different principle. The defence concedes the title of the co-tenant, and seeks to defeat it for the omission on *her part to assert it in prop- [ *395 ] er time. So in the case of Jackson v. Hinman, the defendent would not have been precluded from showing a bar by adverse possession; that ground would not be inconsistent with the principle upon which the decision was placed. An ouster alone of a co-tenant never constitutes a bar; it merely drives him to a legal remedy to gain possession.
The above view is applicable to the whole of the premises claimed by the plaintiffs ; and it will, therefore, be unnecessary to examine the question, whether the judge was right in instructing the jury that they might presume a grant in fee to Bond, the elder, of the portion covered by the Platte lease.
The jury have found that no ouster or adverse possession existed against Angelica at the time of her marriage with Ouderkirk, which took place about 1787, when she was under age; and it is quite clear their verdict is well
It is urged that the taking of the lease from the church by Samuel and Joseph in 1789, of the whole interest, had the immediate effect of ousting the co-tenants. That might be so, if Samuel and Joseph had held the sole •possession at the time; but the weight of the proof is that the family were occupying the premises the same as when Bond left them.
New trial denied.