Doe ex dem. Clinton v. Campbell — 10 Johns. 475

Majority

p. 481

Doe, ex dem. Clinton and others, against Campbell. Same against Tubbs. Same against Cross. Same against Elliott. Same against Henry.

NEW YORK,

Oct. 1813.

Headnote

pla¡^¡¡^ action of ejectment, commencedin 1809, showed title by a re cion to eigheths o7the' a j"*°'0cs!l hith&t «u the-lots in aMded^with ^‘facquam téd, -wereheid tfiatpanhion” Ending title ™a¡¡'Jn^w0 ae" tentees ap-' pearing, it -was held that it might legally be inferred that the lessors had a perfect title to the whole.

Where a deed, dated the 14th May, 1767, recited that several of the grantors conveyed by P. Y., their attorney, <kc. it was held, in 1809, that after so great a lapse of time, and an acquiescence in she title under that deed, the power of attorney was to be deemed valid, without being produced, or proof of its execution.

A possession of a lotofland commenced adversely, 25 years ago, by a clearing of 4 or 5 acres, withaut showing on what part such clearing was made, and a regular deduction (if title, or privity and continuity of possession, down to the defendant, is not stcii $n adverse jiossecoign as will bar the plaintiff.

THESE were actions of ejectment, for lot No. 4. in Young's patent, and tried at the last 'Otsego circuit, before Mr. Justice r o’ Thompson.

mi,. -LUC The suits were commenced the 18th January, 1809 plaintiff produced in evidence the following conveyances"; cf‘patent £o Frederick Young and 19 other persons,r dated 11th October, 1765, including the lot in question; a -release from four of the patentees to Peter Du Bois-, dated 9th September,-1766; a release from five other of the patentees to Philip Livingston, dated 1st May, 1767; a release from Du Bois and Livingston and all the other patentees, except two, (eight of the patentees conveying by Frederick Young, their attorney, the power for that purpose being recited in the release, but not produced,) to Anthony Van Dam, for the purpose of making partition, dated 12th May, 1767; a release from Anthony Van Dam to Peter Du.Bois", for the lot and premises in question, dated 2d September, 1767; a

p. 482

deed in trust, for the same lot, to Henry White, Jacob Waltony ^ames Duane, and Samuel Very lank, dated 2d December, 1770 5 and a deed for the same lot from the said trustees to Waller Frank- dated 5th January, 1775, for eighteen twentieths of the lot.

The plaintiff proved, by several witnesses, who were acquainted with Young’s patent, that all the lots in the patent, with which they were acquainted, were held agreeably to the partition made by Anthony Van Dam; and they particularized several lots so held. It was proved that Walter Franklin died in July, or August, 1780, leaving three of the lessors of the plaintiff his heirs at law, to wit, Maria, born 21st November, 1775, Sarah, born 4th October, 1777, and Hannah, born 9th January, 1780..

The defendant relied, in his defence, on an adverse possession. A witness produced by Campbell, testified that one Smith commenced a possession on lot No. 4. about 25 or 26 years ago, having . cleared, at that time, about 4 acres. None of the land so cleared was within the land occupied by Campbell, but was within that pari possessed by Elliot, another defendant. None of the land occupied by Campbell had been cleared more than 19 years. Campbell claimed title under one Hake, who alleged that lie purchased with or under Walter Franklin. Campbell offered in evidence a deed from Hake to one Smith, dated in the year 1776, which was not acknowledged. None of the subscribing witnesses were produced to prove it, but the same was offered as an ancient deed; it appeared that Campbell and the defendants in the other causes, claimed title under Smith.

The judge charged the jury, that there could be no doubt of the plaintiff’s right to recover one third of the premises in question ; as the statute of limitations could not attach to that proportion. That the evidence for the defendants did not make out, in his opinion, an adverse possession to any part of the premises in question in the first cause. That if, from the facts stated, the jury should be of opinion that Hake claimed title under Franklin, as he thought they were authorized to conclude, they might find a general verdict for the plaintiff. The jury, however, found a.verdict in the first cause above mentioned, for the defendant Campbell. And verdicts for the plaintiff wore taken, by consent, in the four other causes, subject to the opinion of the court on a case containing the facts above stated.

The case was submitted to the court without argument.

There was proof of title on the part of some of the lessors of (he plaintiff to at least eighteen twentieths of the premises claimed in each of the above causes, and the jury would have been warranted in presuming a title even to the remaining two parts. The release to Van Dam, in 1767, of the title of all the twenty patentees except two, was made for the purpose of making partition; and as he afterwards conveyed to DuBois, and Du Bois to White and others, in trust, and the trustees to Franklin, the ancestor of three of the lessors of the plaintiff, and as it was proved that all the lots in the patent of which the witnesses had any knowledge, were held agreeably to the partitiiion made by Van Dam, and as no outstanding title in the two remaining patentees appeared, a perfect title in Franklin to the whole lot became the legal inference. The power of attorney under which the title of some of the patentees was conveyed to Van Dam, after so great a lapse of time, and such a universal acquiescence in the Van Dam title was to be deemed valid without proof of its execution. This very point was decided in Doe v. Phelps. ( 9 Johns. Rep. 169 .)

The remaining point in the case is, whether any title superior to this was shown on the part of the defendants, or any bar to the action by means of adverse possession. In the suit against Campbell there was no possession of 20 years pretended; and the possession which one Smith commenced about 25 or 26 years before the trial, and under colour (as it was to be presumed) of a deed from one Hake, was on the farm occupied by Elliot. No other possession of 20 years’ standing was shown, and, consequently, the defence of 20 years’ adverse possession could only apply to the suit against Elliot. And in the suit against him the adverse possession is unavailing. The possession commenced by Smith consisted only of a small clearing of 5 or 6 acres, and it is not ascertained in what part of Elliot’s farm it was to be located. But the decisive objection to this defence is, that no regular deduction of title, or privity and continuity of possession, was shown and deduced down from Smith to Elliot, or to any of the other defendants. Adverse possession must be marked by definite boundaries, and be regularly continued down to render it availing. (Brandt v. Ogdens, 1 Johns. Rep. 156 .)

In the first case, the verdict is to be set aside and a new trial awarded with costs to abide the event of the suit; and in all (he

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other cases there must be judgments for the plaintiff for all the lands in possession of the defendants in lot No. 4. in Young’s patent.

Rule accordingly.