1 Cai. Cas. 83 | N.Y. Sup. Ct. | 1803
On the trial it was proved by the plaintiffs that they did then, and for about twenty years preceding, had lived on De Bruyn’s patent; that they had a house and orchard and 28 acres adjoining the same, as early as 20 years preceding, and that they held other parcels of land; that the patent was divided, in 1793, and the plaintiffs then took actual possession of the loci in quibus, which were uncleared wood lots, and that the defendants had cut- wood
On the part of the defendants, the will of Stephanus Yan Alen was produced, bearing date the 17th of May, 1740. It was proved that the testator left three sons, and that two of them died above fifty years ago without issue; that Maria was the daughter of Lawrence, the eldest son of Stephanus, and who died in the lifetime of his father; that Maria married, at the age of 20, one Herkemer, and in 1776 or 1777 went to Canada to her husband; that her husband died in 1795, and that ever since she resided in Canada. The defendants then offered a deed to them from Maria Herkemer, dated January 8, 1800, but this was overruled; that the defendants further proved, that in 1799, the son of Maria Herkemer offered the premises for sale to the plaintiffs for 1007 ; that the plaintiffs offered a price, but no bargain was concluded; that a few days after, one of the plaintiffs admitted that Maria' Herkemer was heir to one ninth of his land, the deed was then offered again, and rejected; the defendants further proved, that in 1751 or 1752, on a division of part of De Bruyn’s patent, and which was after the death of Stephanus, his eldest son Cornelius acted as agent for the share of Stephanus, and claimed, besides his own share under his father’s will, one third of the two shares of his two brothers who were dead;
It appears by the will of Stephanus Van Allen,
This controversy, upon a statement of facts substantially the same with that in the present case, was formerly brought into view before this court, and received a decision in April term, 1801. It came before the court upon a motion for a new trial for misdirection of the judge, who had charged the jury that the law was with the defendants, and who had admitted the deed of Maria Herkemer. A new trial was awarded by the court, and it is in consequence of such new trial that the present application is made.
In the former case it appeared that the plaintiffs claimed the loci in quibus as sons .of Hyletje, the eldest daughter of Stephanus Van Alen; that the defandants claimed under the recent deed of the widow Herkemer, and that her right arose under the will, she having survived the two [*89] sons of the testator, *both of whom had died without issue 55 years before the trial, when her right accrued, and that she claimed an undivided sixth part of two third parts of the testator’s interest in the patent.
The Court then decided,
1. That a deed from Oornelius to his sister Hyletje might be presumed from her entry fifty years before, and uninterrupted possession in her children since, according to the nature and situation of the land; and that this presumption was the more readily to be made since she had a right by the will to claim a deed, and had intimated her wish accordingly.
2. That if this was not so, yet that the deed of the widow Herkemer was void, for she being out of possession, and no demand or claim by her husband or her for forty-two years after she came of age, the jury ought to have been directed to presume an cutter, and that if ousted, she could not convey.
1. With respect to the presumption that Hyletje received a deed from her brother Cornelius, the same facts are here to warrant it.
It appears that by the will of her father, an election was given to any of the daughters to purchase the premises, and a trust was raised in the will for that purpose ; that Hyletje entered upon the premises with her children as early as 1751, or 1752, and after her father’s death, and claimed the whole share of Stephanus; that she contiued in possession till her death in 1767, and that her sons have remained in possession of the loci in quibus down to the present day, and have also claimed the whole share of the testator; that this entry and possession of Hyletje must have been with the knowledge and assent of the other children, and have passed under their eye, for it appears that on the division of the patent in 1751, or 1752, Cornelius, the son of the testator, was present and claimed the whole of his father’s share, and took possession of part; that this possession must soon thereafter have been abandoned, since we find within the same year Hyletje in possession, *and this claim must soon thereafter have ceased, [*90] since we hear no more of it, and the claim of Hyletje remained sanctioned by possession; that the possession was such as the subject was susceptible of, it being understood that a large part of the premises was uncleared pine land, and from all these circumstances there arises a strong and unshaken presumption of right. A deed is justly, if not necessarily, to be presumed, and considerations of public convenience and sound policy will, under such circumstances of ancient and continued possession by colour and
2. We think that we are also bound by the former decision to consider the deed of Mrs. Herkemer as void, and that the same facts are stated in this case to lead to the same result. Her right, under the will, and upon the death of her two brothers, had accrued upwards of fifty years before the trial. Concurrently with the commencement of her right, Hyletje had entered under a claim to the whole share of her father, and under a right to elect and demand a deed for the same. This entry and enjoyment of the premises must have been adverse to the claim of her niece; and her possession, continued down in her and her sons, had every appearance of an exclusive and independent possession. One strong mark of exclusive owenership was the extension of the clearings from time to time, and this in pursuance of a claim to the whole share of the testator made by Hyletje and her sons. It does not appear that from the time of the commencement of the right of Mrs. Herkemer down to the date of her deed in 1800, a period of about fifty years, that she ever asserted her right, or received or claimed any share in the profits of the premises, and that an adverse claim of possession was constantly before her. These facts undoubtedly amount to an ouster
Our opinion accordingly is, that the defendants take nothing by their motion.
New trial refused.
He claimed one-ninth of the patent, amounting to 900 acres, chiefly pine land.
3 Durnf. 155, 169.
Cowp. 217.
Slyright & Page's cast
Where the possession is old, and has gone according to the right set up, a deed necessary to the title will he presumed. Anon. 1 Tent. .257, Warren v. Greenville, 2 Stra. 1129. But when the possession is not ancient, and shown to be against the right claimed, a deed will not be presumed. Goodtitle v. Duke of Chandas, 2 Burr. 1065. Thus, if a surrender 200 years ago be shown, yet after a subsequent possession of 150 years under a rent stated in a parliamentary survey as freehold, a grant will be presumed even against the crown. Roe v. Ireland, 11 East, 280. So on a possession of crown lands, commencing by encroachment 55 years ago, if it be continued down within 7 years, a grant will be presumed, unless it appear that by statute, or otherwise, the crown could not grant. Goodtitle v. Baldwin, 11 East, 488. So after an abandonment of premises by a tenant, and 14 years’ possession, under a lessor who was entitled to enter on non-payment of rent, a re-entry will be presumed. Jackson v. Demarest, 2 Caines’ Rep. 382. But the non-payment of rent for nine years was held not to furnish evidence to make such a presumption. Jackson v. Walsh, 3 Johns. Rep. 226. The class of cases above referred to, seems to be no more than deductions from the rule of law, by which all things done are presumed to be legally done, unless the contrary appear; as that an apprentice deed, which was acted upon, shall, after a lapse of 30 years, be presumed to have been regularly stamped, though there be not any memorandum of such a stamp in the entries of the stamp office; (The King v. Long Buckby, 7 East, 45;) but where a right has not been acted upon, it shall, after a lapse of perhaps 20 years unaccounted for, be presumed to be extinct. Therefore, if in ejectment an outstanding title in a stranger be relied on, the defendant must show it to he a subsisting title under which possession has been had within 20 years, or it will be presumed to have been extinguished. Jackson v. Hudson, 3 Johns. Rep. 375. There is another class of cases, influenced by the doctrine of presumptions, arising from the rule, that all things which ought to have been done shall be presumed to have been done, unless, &o. Therefore, where the plaintiff showed title in his lessor under a devise to trustees, with directions to convey the estate in fee to the lessor at 21, and that he had attained that age, a conveyance from the trustees was presumed. England v. Slade, 4 D. & E. 682. But as the law never presumes a wrong, (see Williams v. East India Company, 3 East, 192,) a deed will not be presumed in violation of a trust, or even in favor of a possible breach, as where the trust is doubtful Keene v. Dearborn et al., 8 East, 248. A further rule to be attended to, in regard to presumptions is, there must be some fact in consequence of and in harmony with which the presumption may be made. Thus, if an alien enemy come into a country in time of war, and continues there without disturbance, a license shall be presumed. Maria v. Hall, 1 Taun. 37, (note.) So it a feme covert has for several years received the rents of her separate estate, an au
The rule is stated, that as between tenants in common, &c., there must be an actual ouster. 1 Inst. 199, b; Smales v. Dale, Hob. 120. Therefore, the mere exclusive possession and perception of profits is not an ouster, (Fair-claim v. Shackleton, 5 Burr. 2604; Doe v. Keen, 7 D. & E. 386,) unless accompanied with a denial of the right to either, in the co-tenant. Doe v. Bird, 11 East, 49. But observe that the co-tenancy cannot be availed of by the defendant at the trial if hé has not entered into the consent rule specially. Jackson v. Denniston, 4 Johns. Rep. 311. But see Doe v. Croft, 1 Camp. 173,