Fleming & Wife v. Griswold — 3 Hill & Den. 85

Majority

p. 85

Fleming and wife vs. Griswold.

Headnote

tinder the revised statutes, as 'formerly, if an adverse possession commence in the lifetime of the ancestor, it will continue to run against the heir, notwithstanding any existing disability on the part of the latter When the right accrues to him or "her.

Ejectment, tried at the Tompkins Circuit, in September, 1841, before Monell, C. Judge. The plaintiffs claimed the premises in question in right of Mrs. Fleming, oiie of the plaintiffs, who Was heir of Petef Tallman. At the trial the follow

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ing facts appeared : Tallman acquired a valid title to the premises on the 27th of January, 1795. In 1805, Edward Griswold -held the premises adversely to Tallman, under a warranty deed from one Earll; and in 1811, the former,being still in possession, conveyed to Abraham Griswold, the defendant, who thereupon entered and continued to hold the premises till the commencement of this suit, in 1840. Tallman died in 1815 ; Mrs. Fleming, his daughter, having married the other plaintiff, J. B. Fleming, in 1807, while she was under the age of 21 years.

The circuit judge charged the jury that, the defendant having shown in himself and the one under whom he claimed an adverse possession for more than twenty-five years, he was entitled to a verdict, notwithstanding Mrs. Fleming’s disabilities by reason of infancy and coverture. The plaintiffs excepted, and a verdict having been rendered against them, they now moved for a new trial on a bill of exceptions.

S. Sherwood, for the plaintiffs,

said, he found the opinion of the bar much against him on the question raised by the bill of exceptions, and some cases looked that way ; but he thought the latter distinguishable from the present. He should contend, if the court deemed the case open for discussion, that inasmuch as at the time Mrs. Fleming’s right of entry accrued she was under disability, the statute (2 R. S. 293,) did not run against her. (Id. 295, § 16.) But

The Court were clear that the opposite doctrine must prevail ; and they did not think their opinion could be changed by discussion, or any reflection they might bestow on the question. They considered the rule entirely settled, that "where the statute has begun to run against the ancestor or other person under whom the plaintiff claims, it continues to run against the plaintiff, notwithstanding any disability when

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the right accrues to the latter. The revised statutes have not changed the law on this subject.

New trial denied,^[1]

(a) (a) See Tillinghast’s Ballantine on IAm. p. 59, et seq., and the English and American cases there stated in the text, and notes. See also Tillinghast’s Adams .on Eject, p. 59, and notes (2) (3). Id. p. 60, note (1). In the latter work, at p. 46 et seq., will be found a valuable summary of various statutory enactments of the different states of the Union, in regard to the limitation of rights of entry, &c