Jackson ex dem. Bonnell v. Wheeler — 10 Johns. 164

Majority

p. 166

Jackson, ex dem. Bonnell and another, against Wheeler.

NEW YORK,

May, 1813.

Headnote

possession"of tule’ and'"" terwards, on i805,,adepí ment" lo^con-from G. by power of at-T*"vhieif re"cited that T. was seised in fee of the land, ""as ^recorded t" e''clerk" of the county,on ríási-,' is:)G." possession"att 1* and in ¿March, 1806, T. conveyed to W. the land in question. B. the original patentee of the lot, conveyed it,- liv deed plated nth September, 1807, to G. and afl.ervvards, on the 29th September, 1808, convey ed the same lot, by another deed, to W. and others.^

In an action of ejectment, on the demise of B. and G. against W. it was held that the possession of the laud was adverse at the time of the deed from 15. to G. the lltli September, 1807, which destroyed ’ he effect of that deed, and that the plaintiff could not recover on the demise of B. because he was estopped by his subsequent deed to W. and others.

THIS was an action of ejectment, brought to recover the pos °f lot No. 72. in the township of Aurelius, in the county 0f Cayuga. The cause was tried at the Cayuga circuit, in June, 1812, before Mr. Justice Spencer. [See Jackson, ex dem. Bon~ > Sharp, 9 Johns. Rep. 163 .]

The plaintiff gave in evidence a patent for the lot in question, to Johi Bonnell, one of the lessors, dated 8th July, 1790.

The defendant then gave in evidence a deed from John Bon» ^ *° him and 14 others, dated 29th September, 1808, for the consideration of 500 dollars, conveying all his right and title to the . &emdash;^ . lot m question. Ine deed did. not contain the usual covenants, but only a warranty against the grantee and his heirs, and expressly that tiie grantor and his heirs should not be responsible for the title. It was executed in Virginia ; Joseph Grover and others were witnesses, and was recorded the 12th October, 1808.

The plaintiff then produced in evidence a deed for the same lot

p. 167

from John Bonnell to Amasa Goodyear, another lessor, dated the 11th September, 1807, and recorded the 25th April, 1811.

John Haring, a witness, testified, that he was employed by Stephen Thorn and Joseph Grover to go to Bonnell, who lived in Virginia, to get a deed for the settlers; and Bonnell told him that he had sold the lot to Goodyear, and refused to sell it to the witness on that account; and the witness, on his return, informed his employers of BonneWs answer. Grover afterwards went to Virginia and procured a deed.

Joseph Parish went into possession of part of the lot on the 1st April, 1805, under a written agreement with Grover, as agent of Thorn ; he had been in possession a year or two before. Wheeler came into possession after Parish.

By the agreement between Thorn, by his attorney, Grover, and Parish, the former was to convey 25 acres of the lot, by a warranty deed, for the consideration of 112 dollar's and 50 cents.

The power of attorney from Thorn to Grover was dated the 7th April, 1805, and recorded in the office of the clerk of the county, the 17th October, 1806. It recited that Thorn was seised in fee of lot No. 72. except the survey of 50 acres, and authorized Grover to sell the same in fee-simple, with covenant of warranty.

The defendant read in evidence a deed from Thorn to Edward Wheeler, dated the 29th March, 1806, conveying two parcels of the lot, containing 214 acres, and including the premises in question ; also a deed from Edward Wheeler, of the same date, to the defendant, for 50 acres, including the premises in question.

The defendant also gave in evidence a deed, dated 18th October, 1808, from Wheeler and 14 others, the grantees named in the deed of Bonnell of the 29th September.

H. G. ISettleton, a witness for the defendant, testified, that he had shown the lot to Joel Goodyear, six years ago, and the different settlements on it, and mentioned the name of the soldier who drew the lot, and that the title was disputed. Joel Goodyear made the contract, and procured the deed of the 11th Septeinber, 1807, from Bonnell to Amasa Goodyear.

A verdict was taken for the plaintiff, subject to the opinion of the court on a case containing the above facts.

Cady, for the plaintiff,

relied on the decision in the case of Jackson, ex dem. Bonnell, v. Sharp, ( 9 Johns. Rep. 163 .) as conclusive in the present case.

p. 168

J. Russel, contra,

insisted that there were several facts in the present case, as to the adverse possession, which distinguished it from that of Jackson, ex dem. Bonnell, v. Sharp ; and he cited Jackson, ex dem. Dunbar, v. Todd, ( 6 Johns. Rep. 257 .) Jackson, ex dem. Burr and another, v. Sherman, ( 6 Johns. Rep. 19 .) Jackson, ex dem. Humphrey, v. Given, ( 8 Johns. Rep. 137 .)

This case has been supposed to be governed by that of Jackson v. Sharp, ( 9 Johns. Rep. 163 .) which related to , part of the same lot, but there is a material difference between the. two cases, as to the evidence of adverse possession, when Bonnell conveyed to Goodyear ; and it appears in this case to be made out so clearly as to be sufficient to destroy the operation of that deed..

The point is, whether the defendant did not hold adversely to any existing right in Bonnell, on the 11th September, 1807, when Bonnell conveyed to Goodyear. • Parish appears to have been the earliest occupant of the premises, and he entered without title or claim; but on the 1st April, 1805, he accepted of an article of agreementfrom Grover, as attorney to Thom, to convey 25 acres of the lot by a warranty deed, and Grover had a letter of attorney from Thorn, dated in 1805, which recited that Thorn was seised in fee of the lot No. 72. and it authorized Grover to convey the same in fee ; and this power was recorded in the clerk’s office of the county on the 17th of October, 1806. Thorn conveyed part of the lot, including the premises, to Edward Wheeler, by deed dated the 29th of March, 1805, and Edward Wheeler, by deed of the same date, conveyed the premises to the defendant. At the time, then, of the conveyance from Bonnell to Goodyear, the claim of Thorn to the premises by title in,fee, appeared by his letter of attorney then on record, and the defendant was in possession under a deed from Thom.

If this adverse posséssion was sufficient to destroy the effect of the deed to Goodyear, the plaintiff cannot recover under the demise of Bonnell himself; for his deed to the defendant and others, subsequent to that to Goodyear, is enough to estop him, and the ■ case, in this respect, comes precisely within the decision of Jackson v. Demont, ( 9 Johns. Rep. 55 .) The defendant is, accordingly, entitled to judgment.

J udgment for the defendant.