10 Johns. 338 | N.Y. Sup. Ct. | 1813
There is a case in 2 Saund.
[T. A. Emmet So is the case of Bateman v. Allen, in Cro. Eliz. 347.]
In the cases of Allen v. Rivington and Bateman v. Allen, it will be found that the defendants entered upon the prior possessors and ousted them. Here the defendants entered on vacant land. Those cases, therefore, are not applicable. If the doctrine of the lessors is to prevail, a possession taken of vacant land and continued uninterruptedly for 19 years, may be destroyed by a prior naked possession for one year taken 50 years before.
In ejectment, the inquiry is not as to the title of the defendant. The issue between the parties is, whether the lessor of the plaintiff has a title to the possession, and the -whole burden of proof lies upon him. The plaintiff must show a higher and better title than that of the defendant. Now nothing is a higher title to land than actual possession, unless it be the right of possession. And the. plaintiff, in this case, is-bound to show such a right. If this is not
In ejectznent the lessor of the plaintifF must have a right of en~ try.
The plaintiff, in this case, has shown no fraud, or force, or wrong, on the part of the defendants; no declarations or admissions by them of the claim of the plaintiff. Nor has the plaintiff shown any documentary evidence of title. On the contrary, the de fendants are bona fide purchasers, entering under a claim of title, and holding a continued possession, and making valuable and permanent improvements.
Will it be said that the party having died in possession and a descent cast, alters the case ? A wrongful possession acquires no force or validity from a descent cast, unless it has been so long as to amount by law to a right of possession, and so tolls the right of entry. A mere possessor cannot avail himself of a constructive possession; but must show an actual possession within 20 years and in the present case more than 20 years have elapsed since any actual possession by the ancestor of the lessors. Here was not n, recent possession, on which the defendants have entered, but an ancient possession taken 50 years ago. The defendants entered, as rightful owners, not as abators or trespassers„
Again, a mere possessor, without right, cannot avail himself of the fact of being driven out by a public enemy,' so as to claim the
Next, the defendants showed an outstanding title sufficient to bar the plaintiff. The patent of the 10th of April, 1696, though appearing, on the face of it, to grant an estate to the patentees in joint tenancy, we have shown to have been, in fact, a grant of an estate in trust for eight others; and that trust has been executed. Admitting that it was a joint tenancy in the patentees, still it was a title out of the lessors. Having shown that the original patent from the Dutch governor to Cornelius Van Bursum could not be found after the most diligent search, we had a right to rely on the recital in the subsequent patent of confirmation, and the petition of the patentees on which it issued, as evidence of the original patent. Where a deed is in the name of one person, yet if it can be shown that the consideration was paid by another, there will be a resulting trust for him.
The court, in the case of Smith, ex dem. Teller, v. Burtis & Woodward, (9 Johns. Rep. 197.) have decided the point as to possession. The court there said, “We may infer title from the ten years’ possession* sufficient to put the defendant on his defence.” And we contend* that this possession, in law, amounts to a presumptive evidence of a fee. J. Teller, the ancestor, entered on the premises as owner, and erected a house, which he occupied during his life, without acknowledging the right of any other person, and he died, leaving his wife and family in quiet possession. It is said, however, that the property afterwards became vacant and derelict'. But the family of Teller did not voluntarily abandon it; they were expelled by a public enemy, who took possession of it, and kept it, by right Of conquest; and by the treaty of peace of 1783, they were revested in the same title and estate as they held when they were dispossessed. If, then, the possession is to be deemed, by construction of law, as remaining in the lessors, it is prima facie evidence of a fee, and is conclusive against the defendants, until they show a better title. In Jackson, ex dem. Ludlow and others, v. Myers,
The plaintiff, on the evidence of possession, was entitled to recover the whole or none. It is impossible, by any rule of law, that he should recover a part only. The prior possession set up by him, as evidence of right, must be taken as evidence of the whole right. The charge of the judge was, in this respect, erroneous. The jury, by their verdict, have made the defendants tenants in common with the lessors of the plaintiff. When the defendants showed tillo to a part, the plaintiff’s title by possession was gone, and he was bound to show a title to the part he claimed before he could recover.
We have often said that where a person dies
Blaclcstone
The action of ejectment is, in truth, an action of trespass, to which an execution is added, giving the party prevailing the possession of the thing itself. You may try the tifie or not; but if the party does not think proper to show a title, he may try nothing but the right of possession.
In Allen v. Rivingtonin,
It has been attempted by the defendants’ counsel to raise a distinction between the cases cited and the case before the court, on the ground that the premises in question were vacant when the defendants entered. It is true, that in common parlance, there may be a vacant possession; but the law knows of no vacant possession. On the death of Isaac Teller there was a descent cast, and an actual as well as a legal possession, until his heirs were turned out by the public enemy. The possession of the mother enured to the benefit of the heir,
Then we have shown aprima facie evidence of title in the lessors sufficient to entitle the plaintiff to recover; and the defendants have shown no title in themselves, but, at most, a title to two eighths out of the lessors. They have not proved an adverse possession for 20 years. But the plaintiff has shown an actual possession for 10 years, and a constructive or legal possession for more than 10 years after, deducting the period of the war.
Then as to the title set up under the Van Vleeck deed of 1753. We contend, that on the face of it, it is not a genuine deed. There are erasures in it not noted, and it was proved 54 years after its execution. It has no pretension as an ancient deed, for possession did not accompany it. No account is given of it; and it is attended with suspicion. But admitting it to be genuine, it does not include the premises.
[Here the counsel examined, at great length, the location of the premises, and discussed the evidence adduced at the trial. The deed of partition and other deeds given in evidence by the defend
B.'B. Ogdeú, in reply. By the statute of limitations, “no person shall make an entry into lands, but within 20 years after his right and title first accrued.” Now, in the present case, there is no pretence that there was a possession by the lessors, or then-ancestor, within' 20 years prior to the commencement of this action. It is laid down by Butter,
Again, it is said that Isaac Teller was in possession of the property for 10 years, and died in possession; but unless a descent cast tolls the right of entry, the heir stands on no better ground than his ancestor. And this court, in Smith, ex dem. Teller, v, Buriis ¿f Woodward,
In the cases decided in this court, where a recovery has been liad upon a possession of less than 20 years, it will be found that the defendants did not pretend to have title, and were considered as mere trespassers or intruders. But the defendants cannot be considered in that light. They were bona fide purchasers, for a valuable consideration, from persons in possession and claiming title, and they have continued in the quiet and uninterrupted possession of the property, th#s fairly purchased, for 14 years. If the prior possession shown by the plaintiff was sufficient to entitle him to recover, then it was conclusive ; and it was not competent for the defendant to go into any evidence of title at all; for if the plaintiff showed such a possession as would entitle him to recover, it must be such a possession as gave him a good title in ejectment. Novr, that must be a possession that tolls the right of entry of him who has the legal right. And the right of entry being tolled, the defendant must be driven to his real action.
Again, if the plaintiff can recover on a prior possession of 10 years, against a person who has been in possession 15 years, must it not be on the weakness of the defendants’ title rather than on the strength of his own, contrary to a leading principle in the action of ejectment ?
In Demi v. Bernard,
In this view of the subject, one year’s possession is as good as 19 years $ that is, neither is good for any thing, either as title in a plaintiff or defendant, in an action of ejectment. • In Allen v. Rivington.
Again, the defendants have showed title to two eighths, and must, therefore, be tenants in common with others; either with the lessors, or with some other persons. If with other persons, then
If the defendants were tenants in common with the lessors, then they, or those under whom they claim, must be tenants in common with Isaac Teller, for it is not pretended that they are tenants in common with the lessors, by virtue of any grant from them since the death of their ancestor; and if tenants in common with Isaac Teller, then his possession was for himself and his co-tenants.
delivered the opinion ‘of the court. The most important point in this case is, whether the lessors of the plaintiff showed sufficient evidence of title to authorize a recovery.
They showed that in May, 1768, J. Teller, their ancestor, entered into possession of a house which he had built two or three years before on the negroes’ burying ground, and which had, previously to his entrance, been occupied by his tenant. That he had a fence enclosing the burying ground, and claimed it as his property, and pastured it, and kept the key of the gate leading to the ground, and took payment for the use of the ground, and that it was known and called by the name of his land and fence. That he continued in possession until his death in June, 1775, and his family continued in possession afterwards, and until the commencement of the troubles, (as one of the witnesses expressed it,) and which undoubtedly alluded to the invasion of New-York in 1776; and that then the family left the city and retired into the country, and the British army took possession of the house and lot, and during the course of the war, and while under the dominion of the British, the house and fences were destroyed. That the premises claimed are part of the burying ground so possessed by J. Teller, and except the occupation by the British troops, no possession adverse to the claim of the lessors took place, as to the land now demanded, until the year 1795.
These facts were,- upon the'trial, declared to be sufficient to warrant a recovery. They are prima facie evidence of right, an.l it is not necessary that the plaintiff in ejectment should, in every ease, show a possession, of twenty years, or- a paper title. A pos
That the first possession should, in such cases, be the better evidence of right, seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumption of right, and it stands good, until other and stronger evidence destroys that presumption. This presumption of right every possessor of land has, in the first instance, and after a continued possession for twenty years, under pretence or claim of right, the actual possession ripens into a right of possession which will toll an entry. But until the possession of the tenant has become so matured, it would seem to follow, that if the plaintiff shows a prior possession, and upon which the defendant entered without its having been formally abandoned, as derelict, the presumption which arose from the tenant’s possession is transferred to the prior possession of the plaintiff, and the tenant, to recall that presumption, must show a still prior possession, and so the presumption may be removed from one side to the other, toties quoties, Until one party or the other has shown a possession which cannot be overreached, or puts an end to the doctrine of presumptions founded on mere possession, by showing a regular legal title, or a right of possession.
It is stated in Jenkins (Cent. p. 42.) that “ the first possession, without any other title, serves in an assize for land,” and the assize, like the ejectment, was a possessory action. In Bateman v. Allen, (Cro. Eliz. 437.) it was ruled that the plaintiff was entitled to recover in ejectment, -when it was found by special verdict, that
In the present case, there was peculiar force attached to the prior possession on which the plaintiff relied. There was a descent cast during its existence, and the infant heirs of the ancestor were driven from the actual possession by a public enemy, who destroyed the improvements on the property. According to the equity of the jus postliminii, the law revested the possession in the heirs on the removal of the hostile force. Ouster by the enemy ought not, of itself, to work, in legal contemplation, a discontinuance of possession. The possession was, by construction of" law, in the heirs of J. Teller, until an actual adverse entry in 1795, upon that constructive possession.
This testimony being sufficient to entitle the plaintiff to recover, what did the defendants produce in opposition to it? They showed no prior possession, nor did they show a subsequent adverse possession of above fifteen years, nor did they show title in themselves. The effect of the evidence was to show a subsisting title out of the plaintiff; and if the deed of 1753, to Mary Van Vleeck, was not genuine, or, if genuine, if it did not cover the premises, (and this was the better conclusion,) the defendants did not succeed, unless it be as to two eighths of the premises, and for that portion of them the verdict was not taken.
The motion to set aside the verdict ought, therefore, to be denied.
Motion denied.
Allen v. Rivington, 2 Saund. 110.
Runn. on Eject. 10-14. Burr. 119.
Co. Litt. 266, a.
3 Johns. Cas. 108, 128, 118. 2 Johns. Rep. 22. 4 Johns. Rep. 202.
Prec. in Ch. 31. 1 Atk. 59. 2 Atk. 150. 257. 2 Vent. 361.
2 Term Rep. 695. 1 Term Rep. 758. 7 Term Rep. 2. Bull. N. P. 110.
3 Bl. Com. 176—178.
Runn. on Eject. 12.
Bull. N. P. 103. 109. Salk. 42l.
8 Co. 101.
2 Selw. N. P. 618.
2 Saund. 111.
Cro. Eliz. 437.
7 Term Rep. 786. 3 Wils. 516.
Gilb. Ten. 21. (4th edit.) n. 20. p. 370.
Bull. N. P 102. 1 Burr. 119.
2 Johns. Rep. 230.
3 Johns. Rep. 388.
2 Johns. Rep. 234.
9 Johns. Rep. 197.
Gilb. Law of Tenures, 21.
Bull. N. P. 103.
Burr. 2487.
Cowp. 595.
2 Salk. 421. 2 Ld. Raym 741.
2 Saund. 111.
Cro. Eliz. 437.