Majority
p. 513Jackson, ex dem. Colden and others, against Moore.
Headnote
pJreonstEebeLg ESdwided ira™ made partition, the ent£oTtr»ct convey to eách °f the grantors gj®^yrtionj2 ^ensb.°ÍgeÍ¡e”Xg?ó‘ that geidíinSnactioR bX^t^isoí-, claimingrunder «"! between*’ whom partition was made, that a conveyance by ‘ursuanc^hhe "pr“ss^Jeds t0 °‘‘to^Sessim'S". land, under & lease in fee, in 1775, and in 1778 gave the land to £., by parol, who continued in possession, claiming under the lease, until 1798, excepting the period of the war, and a year or two after, and B. conveyed the premises to 0., and C. to Dwho conveyed the same to the defendant; it was held, that this was a sufficient adverse possessiou to bar an action of ejectment by the person having title to the land, commenced in 1807.
Where an adverse possession begins to run in the lifetime ©f the ancestor, and the land descends to an infap*. heir, the latter is not protected by. his disability.
THIS was an action of ejectment, brought to recover lands lying in the artillery patent, in the town of Fort Ann, in the county of Washington, and which was commenced in August vacation, in the year 1807. The case was tried before Mr. Justice Fan Ness, at the Washington circuit, in June, 1810.
rr, i . The lessors of the plaintiff claimed under letters patent to Joseph Walton and 23 others, dated the 24th of October, 1764, for a tract of land containing 24,000 acres, known by the name of. the artillery patent. This tract was conveyed by deed, dated the 25th of October, 1765, by Joseph Walton, Alexander Colden, and the other proprietors, to Abrahctm Walton, by which it was recited, that the parties of the first part having, by sundry , , mesne conveyances, become seised ot the whole tract, m the pro- J , ..... . portions therein staled, had agreed to divide the tract into 250 lots, and to release the whole to the party of the second part, his heirs and assigns, to stand seised of the several lots drawn to the
p. 514
share-.of each of the parties of the first part, for their respective useS), ¡n fCCj ant[. designated' the several lots-which'had been drawn to the-share of each of the parties ofithe first part ; an'd the party of the5 second part covenanted.to. execute releasesin fee, to each of the parties of the first part of their respective lots when required. •. Abraham Wallo,n died several5 years be? fore the commencement of this .action, and the lessors of' the plaintiff, excepting Golden,..are his heirs at lav/. -Alexander Golden died in 1775, leaving Richard N-. Golden his" heir, who died in-1777, leaving .Alexander-R. Coldenjcñs•fc'ei*,-who'died in 1796, leaving Cadwalladér R. Colden, one of the lessors Of-the plaintiff,, his only brother and heir, Alexander R. Golden Was about 22 years old when he died, and GadzualladerR. Colden was bom in 1775 pr 177-6. It Was admitted on dhe trial, : that the patent wqs generally settled and held under, and according to, the partition made by the proprietors.
It.was proved by the defendant,, that on the 27th. of May, |767, one Jane, took possession .of 1OQ ;acres of land, .on the north pat’t of lot lío, 15.-, in the artilierypatent, (in which the. premises in-, question are included;, .and which, in the partition of the patent, had fallen, to theshare Of Ale$anderCólden;) under. ,á lease, in fee from one Anthony Fpnniifgton,.reserving.a pepper?corn rent. • Jane .Rag/and.died in4778, and ppevious'tq fief death, gave1.the land she. claimed, ,by paro], to -her son, Jumt? PerMnsy (she,, howevep, having other children,) who went into possession, and epntinuéd;iq.-possession yntil the.War, when fie joined die army Of the United Staves, and one or fWO years after thp war, resumed the possession for about 11 years,. -The. Original lease to Jawe Ragland was-burnit with^Per^s’s house, gfter the war- In 1787 or. 178$, PerA%s,rs ppgs.essjon wasin'partenclosedby fences,-principally ma4eby;.the owners pf t^e ad? ■joining, lots, upon thépp outer lines, and the -'residue, by a fence qf and,lopped . sPef^tnS'-^twh at that timej about g,Q acres improved, and had since, extended his improvement to. §0 op 40 acres, Pepsins, by .deed dated, the 30th of Augy,st,t. |798, conveyed the'iand which he. claimed to pne SolmowWik U§rn§., who took possession at thq: time pf his purchase, Wili%ms, by deed dated the 20th : o’f October, 1803, conveyed 76 gpres, 12 pqds, and 75 poles, tp Roswell GamApph, whp, by deed ¿gtfd the-1st ;qf 1 $04, conveyed.the same -to the'eje? fgadq-nti; It g|tg}t|e4j tfe»f P&t&M 1üé?.'-^safgs^d' qf -the
p. 515contended, 1. That the plaintiff had showed a sufficient title.; that if the- statute executed the uses, then the lessors claimed, under the heirs of Colden ; if not, they derived title under Walton, to 8-24ths of .the premises. But, in either case, they claimed to hold in severalty ; and they relied op the case of Doe, ex dem. Clinton, v. Phelps,[1] and Doe, ex dem, Clinton, v, Campbell,[2] as in point to show that, after so great a lapse of time, a title in the whole in Walton and his heirs, and a conveyance by the trustee was to. be presumed ; and that the lessors had, therefore, a perfect title to the whole, in severalty. 2. As to the adverse possession set up, the present case did not come within the principles of former adjudications •[3] - insisted, that the lessors of the plaintiff had not shown title. In the cases cited,, the patentees were lessors of the plaintiff. But what title had Alexander R. Colden? The act of eight of the 24 patentees, joining in a-conveyance to, a special trustee could not affect the rights of the other patentees. Again ; the defendant has shown an adverse possession, uninterrupted, for more than 2.0 years. .
premises, in the manner above stated, about 21- years previous to the commencement of this suit. ,
A verdict was taken for the plaintiff* subject to the opinion of the court, on a case containing the above facts,,.
Van Vechten and Mitchill, for the plaintiff,
Z. R. Shepherd, -contra,
The premises in question are a part of lot
bio. 15;, in the artillery patent; and the lessors of the plaintiff are Cadwallader R. Coldsn, and the heirs of Abraham. Walton, The first question that arises is, whether any title has be,en shown in the lessors, or any of them. The patent was granted in the year 1764,-to Joseph Walton, and twenty-three other persons, for twenty-four thousand acres of land; In the year 1765, a partition of the patent was made among the then proprietor^ ; and for the purpose of making the partition, a deed in trust was executed to Abraham Walton, who covenanted, on his part, to execute releases in . fee, to the respective owners of the lots, according to. such partition. This deed contained a recital, fhat the parties of the first part ha& by sundry piesne conyéyances, become seised of the lands granted by the patent, in
p. 516
the proportions'therein mentioned, according to which lot No.; 15., including the premises ip question fell to Cadwallader Colden, who was a party to the deed, and from whom Cadwallader R. Colden derives his title. Eight of the original patentees were parties to this deed ; so that, as to eight twenty-fourth parts of the premises, the title was clearly conveyed to Abraham Walton. It was admitted upon the trial, that the patent was gene-, rally settled, and held underhand according to,.this partition, Thesé facts,'after such a lapse of time, are sufficient tó presume a title to thé whole of the premises in the heirs of Abraham, Walton, or that he had executed the trust, and conveyed in severalty, to the respective owner's;; and in either case, the title would be thus proved in some of the lessors. The principles laid down and-adopted by this court, in Doe v. Phelps, ( 9 Johns. 171 .,) and Doe v. Campbell, ( 10 Johns. 475 .,) are. directly in point; and would fully warrant a judgment for the plaintiff, Wére itmot for the adverse'possession on the, part of the defendant.' The. lessor, Cadwallader R. Colden, can claim nobenefit'from his in* fancy; for the statute, if it has run at all,, began to run in the. lifetime of the ancestor, and the' facts. disclosed upon the tidal show a very strong case of' adverse possession. As. early a*, the year 1775, possession Was taken of one hundred acres of lot; No. 15. under a lease from Anthony Farrington.;' This lease was not produced upon the trial, but its,loss and contents were sufficiently proved, and appeared to be a lease in fee, at a nominal rent. And although- there -Was no legal transfer of the lease to Perkins, yet he, in the year 1778, look possession, claiming under it; and continued such possession, except while it, was interrupted by the war, until the year 1798, when he-sold and conveyed to Solomon Williams, who, in 1803, conveyed to Comstock; and in 1804, Comstock conveyed to the defendant. - These facts' show, very satisfactorily, such an adverse possession as will protect the defendant against the present action,, arid upon this ground alone judgment is given for the defendant;
Judgment for the defendant.[1]
(a) (a) In the .case of the same lessors against John Parish, the premises in question -Were á ’part of the ’land-formerly held by Perkin*» and judgment was /also given’fór.the defendant., on thegróund ofa'd ver se possession. But in the five,other causes, at the suit ófthe same lessor*,, depending ob thé same case,-judgment was,given ^forth? plaintiff), as .no adverse possession was attempted to be set up.
Cases cited
- Dey v. Murray 9 Johns. 171 p. 516
- Doe ex dem. Clinton v. Campbell 10 Johns. 475 p. 516