Jackson ex dem. Bristol v. Elston — 12 Johns. 452

Majority

p. 452

Jackson, ex dem. Bristol and others, against Elston.

Headnote

Explicit ev.., deuce of notice pfstered°rdeed" wfierfa person PMiMiion o/añ Sp without ami afterwards' Su| another, such an adverse possession as xt-m ayoici a £»ahl. lrom the vtue proprietor.

. THIS was an,action Gíéjiectmeniíor lot Hot 93, iff the town»' */.■■■■ ■ ' . # . . , ship of Gcsio, formerly Brutus.^. tided' at the, Cayuga' circuit,., in last, before'Mr. Justice . Hare-.JV'éss,-when a. verdict was for the plaintiff, subject to. the opinion of the court on the' following ease: Letters patent for the lot in question were issued: to %mo:s,Hagg.ertyi a- soldier,, in the line of this .state, dated the 19tli of' February, 17,91. ■ The marriage Und death of JWaggej'ty Were proved, and that Julia, Ami Williams'was his only surviving child by that marriage,. The plaintiff also gave |n evidence ¿'deed for one half of the-lot in question, to Charles . ‘ . - BnstoL one of the lessors, from Alexander Williams, and 7 > 7 , said Julia Ann,- his wife, dated the 5th-of Marph,.1,809, and Recorded' in the office Of the clerk of Cayuga county, the 27th of August, 1811 ; also, - a deed from the said Williams and ••his wife, for one-equal half of the said.lot, t® $)cnml ffl» Bristeii''

p. 453

dated the 4th of March, 1811, and recorded in the same office the 27th of August, 1811.

The defendant gave in evidence a deed from Julia Ann Haggerty to JehielDay, dated the 27th of August, 1795, for one half of the said lot; and, also, another deed between the same parties, dated the 19th of December, 1796, for an equal half of the same lot; but neither of these deeds had been recorded. He also produced a deed from Abraham Bellr dated the 22d of March, 1808, for the whole lot, and proved that he was in possession of the premises in question, under that deed, at the date of the deeds from J'ulia Ann Williams and her husband, to the Bristols, above mentioned. It appeared that, eight years ago. Bell purchased the possession of some person then on the lot, but without colour of title, and that, at that time, about fifteen acres had been cleared and improved; and that, at the time of the trial, about thirty acres had been cleared.

Rice, for the plaintiff,

contended, that there was no adverse possession in this case, and that the person of whom Bell purchased the mere possession, must be considered to have held it for the rightful owner, Williams. He cited Brandt v. Ogden, ( 1 Johns. Rep. 156 .) Smith v. Burtis, ( 6 Johns. Rep. 197 .) Jackson v. Sharp, ( 9 Johns. Rep. 164 —166.) Doe v. Campbell, ( 10 Johns. Rep. 475 .)

Kellogg, contra,

contended, that the entry, though with mere colour of title, was sufficient to make out an adverse possession. In Jackson v. Sharp, the defendant entered without colour of title, for the benefit of the patentee. This case was, in this respect, like that of Jackson v. Wheeler, ( 10 Johns. Rep. 164 .) If the defendant entered on the 15 acres, claiming title to the whole, the case of Jackson, ex dem. Putnam, v. Bowen ( 1 Caines’ Rep. 358 .) was in point, and decisive as to the adverse possession.

The title of the. Bristols, two of the lessors 6% the plaintiff, cannot be affected by the two deeds, previously executed to Jehiel Day, for the same premises, because neither of those deeds were recorded; .and it does not appear that the Bristols purchased,, with notice, or knowledge of those prior,

p. 454

deeds to Day ; and explicit proof of such notice, or knowledge,. is indispensable to supply the defect of a prior registry. Without such evidence-, the deed first registered must'prevail against a previous unregistered deed, or the statute, requiring the registry of those deeds, would be nugatory. But it appears from the case, that on the 22d of March, 1808, the defendant had purchased from one Abraham Bell, the whole of this lot, and that he was in possession of the premises in question, under that deed, at the dates of the two deeds to- the Bristols. It is,, therefore, evident, that the defendant entered and possessed under BelPs deed to him. This was an original entry, under colour of title, sufficient to make it a possession and- holding adverse to the title of Williams and his wife, and prevents the operation of the deeds given by them to the Bristols ; and having thus entered, and improved a part of the lot, with a claim to the whole, under this deed, he must be deemed in adverse possession of the whole lot.

If an adverse possession of part, with a claim of title to the whole lot, for twenty years, would bar the action of ejectment% and we have so decided in Jackson, ex dem. Putnam and others, v. Bowen, (1 Caines, 358.,) then it will hardly be questioned, but that the existence of this possession will destroy the operation of the de,eds given to the Bristols. at the time; nor can the manner it was originally obtained by Bell, change the character of the possession; because the defendant held under q, deed in fee, and claimed the whole, in virtue of that deed.. Whether the person who sold to him had purchased the naked possession, or not, cannot avail. The lot was held and possessed adversely, at the date of those deeds, and that is sufficient. They must be deemed inoperative and void.

Judgment for the defendant..