Jackson ex dem. M'Donald v. M'Call — 10 Johns. 377

Majority

p. 383

Jackson, ex dem. M'Donald, against M'Call.

NEWYORK,

Oct. 1813.

Headnote

Parol detiaraféssions of a Son’" of' land, as to the line between iano° g!¿ dence ¡ and. of both parties ^ Occupied boundary Une, disturbed,

m<^" of laud, and heir atlaw thepossession, ¡‘‘ú"d?st turbed possession of it for aboveis years, a purehMe'of be presumed; mere was an. councilor the cotony^of 1764, for the íotj'aíallotted gu^^hereof made, though couidb^found wLTieM^thát a patent to j y%9 and a deed from him to m^in be preg^o/quiev ession.

THIS was an action of ejectment, brought to recover part of ■200 acres of land in Hebron, in the county of Washington. The cause was tried before Mr. Justice Yates, at the Washington cirCtiit, in June, 1812.

The plaintiff gave in evidence an exemplification of an act of the legislature, entitled “ An act for the relief of Daniel M‘Bonald,” passed the 17th February, 1810, by which “all the right, title and interest of the people of the state, in and to a certain lot of land heretofore allotted by the council of the late province, now state, of New-York, to one John Provoost, situate in the town of Hebron, in the comity of Washington, containing 200 acres of land and the usual allowance for highways, according to the survey of the lot made the 2d November, 1764, by virtue of an order of the council of the then province of Nem-York remaining on file in the office of the surveyor-general of the state, is, and the same is hereby declared to be vested in the said Daniel McDonald, his heirs and assigns forever.” The plaintiff also produced a sworn copy of the survey, dated 2d November, 1764, and another copy of the order of the council, dated 8th February, 1764, both refer- , . , ' ° red to m the act.

The plaintiff, for the purpose of locating the premises in question, gave in evidence, 1. A sworn copy of a patent granted to the Reverend Harry Munro, dated the 23d August, 1764, for 2,000 acres of land, “ beginning at the S. E. corner of a tract of 26,000 acres lately granted to William Cockroft and others,” &c.

2. A sworn copy of a patent to George Schunda, dated 23d August, 1764, beginning at the east bounds of a tract granted to William Cockroft and others, &c.

3. A sworn copy of a patent for 200 acres of land to George Brimmer and others, dated 13th February, 1767, beginning, &c.

4. A sworn copy of a grant of 800 acres of land to Jacob Her-her and others, dated 13th February, 1767, beginning, &c,

5. A sworn copy of a grant of 200 acres of land to John ° McPherson, dated 7th May, 1767, beginning, &c.

6. A sworn copy of a survey of the premises in question, dated 2d November, 1764, whereby the premises are surveyed for John

p. 384

Provoost, beginning at the S. W. cerner of a tract of land surveyed for John M‘Pherson, and running thence, See.

7. A sworn copy of a grant to John M‘Kenzie, for 200 acres of 3, dated 6th June, 1761, beginning at the S. W. corner of a tract of land, surveyed for John Provoost, ¿rc.

The plaintiff then produced George Webster, a surveyor, and a-map of a survey made by him of the above-mentioned tracts, by which it appeared that the premises in question were included in the lot surveyed for. John Provoost, Src.

It was admitted that the defendant was in possession of the east' half of the lot of 200 acres granted to John M‘Pherson, including the premises in question. A witness for the defendant testified, that he was acquainted with the lot of land granted to M‘Pherson 41 years ago, and has ever since been in possession of the west half of the lot; that when he first took possession it was wild and uncultivated, and he found at the S. E. corner of the lot a stake and stones, from which proceeded’west a line of old marked trees,; which he followed to the east bounds of Munro’s patent, where he found the S. W. corner, and had always considered that line as the true division line between that lot and the adjoining lot on the south, called John Provoost’s lot, and that he cleared and held possession on the M‘Pherson lot accordingly. John McDonald, deceased, the father of the lessor of the plaintiff, occupied and claimed to own the south lot (M'Pherson’s) about 18 years ago, and always held to the said - division line, - and made a division fence on that line, which still.remains. John M‘Donald died in possession of the south lot, and. the lessor took possession of it, after his father’s death, and has ever since continued in possession. On his cross-examination, the witness said that the division line described by him included the premises in question in the north lot.

Another witness for the defendant testified that in the year 1777, he -went into possession of the Provoost lot, and the year after took the McPherson lot on shares under one jWish, who held it under Donald Fisher. That he knew the line described by the other witness, and that the S. E. corner of the north lot was a stake and stones, from whence, on the same line, was built a division fence of about 60 rods, the residue being woods through, which the line run, designated by marked trees to the S. E. corner of the same lot described by the other witness, in Munro’s east, bounds, to a tree marked on three sides. That John MDonald,

p. 385

¿he autumn before Burgoyne came down, (1776,) said that the line described by the witness was the true division line; that the land was surveyed for the king’s soldiers, and that he (McDonald) was with the surveyor. The lessor of the plaintiff had built a stone wall on part of the said division line.

Another witness also testified that John McDonald, the lessor’s father, told him that the line described by the two other witnesses, was the true division line between the north and south lots, and that he (M Donald) was with the king’s surveyor when the line was run. The evidence as to the confessions of McDonald was objected to, but the objection was overruled.

Another witness testified that about 24 years ago he took possession of the east half of the north lot now in the defendant’s possession, and including the premises in question, under title from John Williams, deceased, and after being in possession for about 5 years sold to one Perry, and that he knew the division line to be as described by the other witnesses.

The defendant gave in evidence a deed dated 22d June, 1784, from Alexander Webster and David Hopkins, commissioners of forfeitures for the eastern district, to the said John Williams, in fee, for the east half of the north lot, as forfeited to the state by the attainder of Donald Fisher, which deed was objected to, but was allowed by the judge to be read.

The plaintiff gave in evidence a certificate from the secretary of state, that he had made diligent search in the books of patents to reduced officers, from the year 1764 to 1775 inclusive, and that he had not discovered any patent recorded for a grant of land to Sergeant John Provoost, who, it appeared by an order of the council dated the 8th February, 1764, was entitled to a grant of 2,000 acres of land as a bounty for military services.

The judge charged the jury that the declarations of John 31‘Donald were evidence of the fact that the south bounds of the M‘Pherson lot were run by government, &e. And the jury found a verdict for the defendant.

A motion was made to set aside the verdict, and for a new trial; 1. Because the judge admitted evidence of the declarations of John McDonald, who was not in possession at the time he made them, and under whom the lessor of the plaintiff did not claim.

2. Because the charge of the judge and the verdict were against law and evidence.

3. Because the lessor claims under the people of the state,

p. 386

against whom there can be no adverse possession within the period of 40 years. '

Crary and Van Vechten, for the plaintiff.

They cited 1 Johns. Rep. 156 . 2 Cruise’s Dig. 558. 1 Rev. Laws, 562. Runn. on Eject. 59. Cro. Elis. 331.

Skinner and Z. R. Shepherd, contra.

The presumption is, that John 31‘Donald waa, in possession of the Provoost lot when he made the confessions which were given in evidence on the part of the defendant. He was in possession 18 years before the trial, occupying and claiming the lot as his own. How much earlier he took possession does not appear; and as nothing to the contrary appears, the jury would have been warranted to presume that he was in possession under a claim of title as early as 1776, when he admitted that "he had been present with the surveyor who run out the line between that and the adjoining lot. His confessions were, therefore, admissible as to the original line, and he repeatedly said, that he was present when the line was run out by the king’s surveyors, and the line set up by the defendant is the line he referred to. This John M‘Do~ nald died in possession, and the lessor of the plaintiff succeeded, as his son and heir, to the possession of the Provoost lot, and in which he has since continued. We are, then, to conclude that the father purchased the Provoost title at an early day, and from the fact of the order of the council, and the original survey by government in 1764, and the recognition o.f it in the patent to M‘Kcnzie in 1765, and the continual and undisturbed possession by the family of the lessor, a patent to Provoost, and a deed from him to the elder M(Donald might even have been presumed for the sake of quieting the possession. ( 3 Johns. Cas. 118 ,) In the case of The Mayor of Hull v. Horner, (Comp. 102.) Lord Mansfield held that a grant or charter from the crown, which ought to be by matter of record, might, under circumstances, be presumed, though within time of legal memory, The fact in such a case is presumed for the purpose, and from a principle of quieting the possession, and not because the court really think a grant has been made. The act of the legislature under which the lessor shows a legal title, without the aid of presumption, is nothing more than a release #r quitclaim from the people of this state for their remaining right'

p. 387

(if they had any) to the Provoost lot; and that statute never meant to vest in M'Donald greater rights than he would have had if the patent to Provoost had been on record.

The confessons of M'Donald are, then, conclusive upon the lessor of the plaintiff, and when we add to this that the Provoost and M‘Pherson lots have been held and occupied, for. 41 years previous to the trial, to the line set up by the defendant, and that the occupants on both sides, and especially the ancestor of the plaintiff, and the plaintiff himself, by his act in building a stone wall on that line, have recognised that as the true line, the opinion of the judge at the trial was correct, and that line ought not now to be disturbed.

Motion on the part of the plaintiff to set aside the verdict denied.

Motion denied.