Jackson ex dem. Winthrop v. Waters — 12 Johns. 365

Majority

p. 365

Jackson, ex dem. Winthrop, against Waters.

Headnote

A possession taken under a grant frotm the French Canadian government, prior to the conquest of Canada by the British, of land in this state, is not such an adverse posession as will prevent or defeat the operation

THIS was an action of ejectment, for lands in Chazey, lying within the bounds of lot No. 70., in Dean’s patent.

The plaintiff produced the letters patent to Elkanah Dean, and others, issued by the colonial government of the province of Nero-York, dated the 11th of July, 1769, and made put a regular title, under that patent, to lot No. 70. The possession of the defendant was admitted. '

The defendant produced a writing, dated the 28th of June, . ° . 7 1768, from Francis Mackay, who claimed under a grant from the French Canadian government to one La Gauchetierre, prior to the conquest of Canada, by which one Jaques La Framboise was permitted to take two lots of land, in Mackay’s seignory, on Lake Champlain, and settle himself there. La Framboise had' entered, 'in 1763, by permission from Mackay, but did not continue long; and again, in 1768, entered under the above writing from Mackay, and continued there until the Jjmerican war, having cleared about twelve acres, when he left the. premises ; and again returned, in 1794, and remained in the possession until January 25,1803, when he conveyed to Charles L. ■Sailley, in fee, all his right in the said lot No. 70, in Dean’s patent. On the 17th of March, 1803, Sailley conveyed to the defendant in fee.

I. Emott, for the plaintiff.

The doctrine ef an adverse pos

p. 366

session is to be taken strictly.^[1] If must be hostile in its com» mencement, and continue so.^[2] The first entry could not be adverse, because the title to the land was in the crown. The writing held by Mackay was dated in June, 1768, and the grant to Dean was in 1769. The king could not be put out of possession by the mere entry of another.^[3] The case of Jackson, ex dem. Winthrop, v. Ingraham,^[4] shows that the property was in the Crown, and there could be no adverse possession against the crown. But was there not, in point of fact, an adverse possession ? Mackay might have had some pretension to a preemptive right; but when he found that it was not recognised by the crown, he totally abandoned it. He never called on La Framboise, as his tenant, or demanded any rent. The possession was not adverse until 1803, when Sailley entered, claiming in fee. Jackson, ex dem. Southampton, v. Cooly,^[5] is a strong case to show that Mackay could not, on the writing given to Framboise, have recovered the possession from him.

Sperry, and E. Williams, contra.

If the entry is under colour of title, it is sufficient to make the possession adverse. It need hot be a good title. No matter how defective or groundless the title may be, if the person enters claiming' under it.^[6] The intention of the party entering decides the character of such entry. There can be no doubt, in this case, that the original entry was- for Mackay’1 s benefit,' and not "for any other person. • There has been a continued possession, under Mackay, for above fifty years ; a duration of possession long enough to bar all the world ; sufficient even against the people who, in succeeding to the rights of the crown, have disclaimed that part of the royal prerogative which prevents an adverse possession being gained against the crown. The statute bars all suits, by the people* for lands, after forty years. It is no objection that Framboise was out of possession from 1776 to 1794 ; for, where a person is driven out from his possession by a public enemy, the possession, in presumption of law, continues.^[7]

Again, the plaintiff having been out of possession for more than twenty years, cannot recover in ejectment.-

Emott, in reply,

insisted, that the doctrine as to an adverse possession against the crown, or the people, was different from tin? doc trine of limitations,' What he contended' for was, that

p. 367

a person entering on the land of the people, under a pretence of title, does not prevent the people from granting the land, so as to give a good title to the grantee.

delivered the opinion of the cburt. The lessor of the plaintiff produced and proved a regular title for the premises in question, under a patent to Elkanah Dean, dated the 11th of July, 1769; and the only question in the case is.-, whether such an adverse possession was shown as to take away the right to recover, in this form of action. The origin of the adverse possession set up by the defendant, is that taken by La Framboise, in the year 1763, by permission of Mackay, who claimed under a grant made by the French government of Canada to La Gauchetierre, prior to the conquest of CVo nada by the British.

In the case of Jackson v. Ingraham, ( 4 Johns. Rep. 182 .) it was held, by this court, that we could not notice any title to land not derived from our own government; that grants from the French government were to be treated as nullities, and absolutely void, and could not afford any legal evidence of title, which we could recognise. And,, if such be the light in which these pretended titles are to be viewed, the possession taken under these grants ought also to be considered as. unavailing, for any purpose. It cannot be deemed a possession in hostility to any private or individual right; but, rather, as a controversy between the two governments, and in no way affecting indivi-> dual claims, further than they were recognised and secured by' the treaty of 1763. No such right is established in the present case. The permission given by Mackay to La Framboise i§ extremely Vague and indefinite. It did not relate to any lot in particular, but was only a general permission to go on two "lots in his seignory. It was, substantially, a promise, that, when he should receive a title, he would convey to La Framboise,■ so that Mackay himself did not pretend to have any title thus vested in himself. Whatever right might have been supposed to pass by this permission, does not appear to have been followed up, or ever afterwards noticed, by either party. No consideration was paid by La Framboise for the land ; no rent .claimed or demanded by Mackay ; and it is reasonable to presume, under the circumstances attending these lands, thus held, that, -whatever pretended right he might once have had,, was

p. 368

given up and abandoned by him. The possession thus held by La Framboise could not prevent the operation of the patent to- Dean, in the year 1769, and must he considered as held in. subordination to the title granted by the patent.

The doctrine of this court, with respect to adverse possession, is, that it is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favour of possession in subordination to the title of the true owner. ( 9 Johns. Rep. 167 .) It must be hostile in its inception^ and continued so for twenty years; and must be marked by definite boundaries.- ( 1 Johns. Rep. 156 . 2 Johns. Rep. 230 .) The possession held by La Framboise, prior to his conveyance to Sailiey, in 1803, cannot be deemed adverse, if his original entry, under Mackay, is not to be so considered, as it clearly is not, it being taken under a foreign government, which we must reject as a legitimate source of title. The plaintiff must, accordingly, have judgment.

Judgment for the plaintiff.