Jackson ex dem. Young v. Ellis — 13 Johns. 118

Majority

p. 118

Jackson, ex dem. Young and others, against Ellis and White.

Headnote

An-entry uder claim and colour of title is sufficient an advertise possession, and it is not necessary that it should be a legal and valid title.

A. claiming title to land by descent, made a parol gift of the same to B., under which B. entered. and aftewards. A. conveyed the land B. it was held that if the deed related back to the entry of B. there was an adverse .possession commencing in B. • and if it did. not, stilly as Jb, by virtue of the paroVgift,became 'the-tenant at wfíbof A.; and his possession was to be deemed the possession:óf A.,- there was an adverse pos- ' session commencing in' A. '•

THIS was an action of ejectment, brought to recover part of lot ]Sfo, i in the patent granted-to Frederick -Young and' others, in; the town of Cherry Valley,' in Otsego county, . The cause was. toied before Mrs. J:.'Spencer, at the Otsego"circuit;- '

Both parties claimed under Theobald Young, w;ho, on the 13th June, IT 7 1, granted the premises in-question to Frederick Young:; under this .conveyance, and as representatives of- Frederick Young, it appeared that the plaintiff’s lessors sought to -recover, It was proved that,, about twenty-five-years before the trial, John D. Young, son of Theobald Young, claimed the premises in " ' <Ju®stlon as ais °wn, and gave, by parol, part of it, being 100

p. 119

acres, to his sister Caty, the wife of Jacob Garlock. Garlock and wife-went into possession one or two years after, and lived on the lot until about 12 years ago, when they sold and conveyed it to one Walradt, since dead, to whom the defendant, Bilis, was tenant. The conveyance from Garlock to Walradt was dated-the 7th of March, 1800, and, on the 11th of March, 1800, John D. Young and wife conveyed the same premises to Garlock.

Evidence was given of the attainder of the ancestors of the plaintiff’s lessors, for adhering to the enemies-of the state during the revolution : but which it is unnecessary to state, as the decision of the court turned altogether on the question of adverse possession.

A verdict was found for the plaintiff, subject to the opinion of the court, on a case to be made, with liberty to either' party to turn it into a special verdict.

The case was argued by Seely, for the plaintiff, and Morse,' {Cady same side,) for the defendants.

The points, raised for the consideration of the court, by the defendants’ counsel, were:

1. That there had been an adverse possession for above 20 years.

2. That F, and A. Young were convicted under the act of ¡attainder of 1779 ; and that these convictions (the judgments on which were signed in April, 1783) were valid, notwithstanding the preliminary treaty of peace of November 30, 1782,

3. That all the lessors, on whose demises the plaintiff claims, as well as those under whom the lessors claimed title, are aliens ; and, under this point, two propositions were laid down; first, That all persons, wheresoever born, who were not within the jurisdiction of the United States at the declaration of independence, are aliens, excepting such persons as were absent from necessity, or with intention of returning; second, That all persons who, previous to the declaration of independence, had made their election to continue subjects of the king of Great Britain, and did, within a reasonable lime thereafter, leave the United States, and fly to the British dominions, and who have not since returned to this country, but have claimed to be British subjects, are, in this state, to be considered aliens.

4. Admitting that the rights of the lessors were saved by the .treaties of peace between the United States and Great Britain,

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or by the principle, that the dismemberment of an empire can-. not destroy a vested right; yet, inasmuch as the lessors of the plaintiff are aliens, resident in the country of our late enemy, at-the commencement of this suit, in 1814, the plaintiff cannot maintain this action. (Jackson v. Decker, 11 Johns. Rep. 418 .)

On the first point, the defendants’ counsel cited 9 Johns. Rep. 180 . Cowper, 207.

The second and third points were argued at- great. length j but as the court have decided the cause on the first point only, it is unnecessary to state the arguments. ;

In the argument of this ease, several very important questions have .been raised, which it becomes unnecessary, however, to notice; because, in.the opinion of the court, such an adverse possession has been shown, as to protect the defendants against this form of action.. It was admitted upon the trial, that Theobald Young, under whom both parties claim, was seised of the premises in question, - It appeared in evidence, that J ohn D. Ypung, son of Theobald, and who claimed the premises as his own, by descent, from his-father, did, about,25 years ago, give: the same to his sister Caiy, the wife of Jacob Garlock. That one or two years afterwards, and at least 22 years since, Garlock and his wife went into possession-under this gift, That, in the year 1800, J. D- Young gave Garlock a deed for the same,,and Garlock sold to Walradt, under whom the defendants hold. It has been repeatedly ruled, in this court, that an entry under claim and colour of title; is s,ufficient to .constitute an adverse holding, . It is not necessary, for .this purpose, that the title, under which such entry is made,, should be a good and valid title. (2 Caines, 183. 9 Johns. Rep. 174 .) 'Taking this to be the rule of law, there can be. DO doubt that the possession taken by Garlpck was tinder claim and colour of title. Although Garlock entered under a parol gift, it must be deemed to be either a possession taken -in his own right, and for his own benefit,- or - in behalf of J. D. Young, who clairrved the premises by descent from his father ; and,, in-either .point of view, the nature of the possession will be the same. If-the deed, subsequently given by Young to Garlock, relates back to the original entry,'then the adverse possession commenced in Garlock himself. If it does not, then. Garhck, under the parol gift, .became a tenant . at will to

p. 121

Young, and his possession will be deemed the possession of Young. ( 1 Johns. Cas. 36 .) So that, in whatever point of view the case is considered, the original possession taken by Garlock, must be deemed adverse. The defendants are, accordingly, entitled to judgment.

Judgment for the defendants.