Jackson ex dem. Vanderlyn v. Newton — 18 Johns. 355

Majority

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Jackson, ex dem. Vanderlyn & Betts, against Newton and others.

Headnote

Toconstitnte ses^fn,eiilsPai'- thaHí should be taken under claim and co-lour of title. If the defendant has a deed, un» »der which his grantor claimed title, he is not bound to produce it, though called for by the plaintiff. And if the deed is produced, and is found defective, it will not destroy the effect of the defendant’s possession.

If a party in possession claiming title under a deed, supposing that there is some defect in the execution of his deed, applies to purchase the title of a person claiming the same prémises, under a subsequent deed, with a view to strengthen or quiet his own title, it is not an abandonment of his own title, nor an acknowledgment of a superior title in another. Where the defendant entered into possession claiming title, ana, afterwards, took a deed for the land from the legal owners, under whom the plaintiff derived title by a subsequent deed; the possession of the defendant is to be considered as adverse from the beginning, or, at least, from the date of his deed ;• and not that its adverse character commenced from the date of the deed to the plaintiff.

'Where the real estate of a debtor consists ofa lot of land, divided into separate farms, occupied by several and distinct tenants, the sheriff cannot' sell the whole lot together, under the general description of a lot of land of a certain number,.without any specification of the parcels occupied as. separate farms, &c. And if he does sotthe Court, on motion, will sét aside the sale.

EJECTMENT for part of Lot No. 47, in Bainbridge. The cause was commenced in May term, 1818, and tried before M r. Justice Woodworth, at the Chenango circuit; in June, 1819.

The lot, of which the premises aré a part, was patented to Timothy Church, in July, 178G. The plaintiff gave in

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evidence a judgment and execution against T. Church,- in. favour 0f James an¿ William, Anderson, in 1800, and a sheriff’s deed dated June 4, 1801, recorded Sept. 8, 1803, for lot No. 4?, sold under the judgment,, to James and William Anderson: also, a judgment in favour of John Taylor a-; gainst William Anderson, dated 19th July, 1808,. and a record of the revival thereof, by scire facias, against the heirs and terre-tenants of W. Anderson, ducketted 8th Augusly 1817, anclajtieri facias issued on the judgment against them: also, a deed from, the sheriff of the County of Che-nango, to the lessors of the plaintiff, dated October 11, 1817.

The defendant’s counsel objected to the plaintiff’s recovery, on the ground that W. Anderson, or his heirs, or any person claiming under him, had never been in possession of the premises in question. But the objection was overruled by the judge.

The defendant proved, that the sheriff sold the whole of lot No. 47, and two farms of W. A. together, for-25 dollars. The defendant then offered to prove that lot No., 47, at the time of the advertisement by the sheriff, was occupied by-six or seven different persons, in distinct parcels, claiming under deeds, and some of whom were in possession before W- A• purchased the ]ot, and others in possession under him, and that the defendants claimed adversely to, and by a title older than that of W, A. and that the description of the lot,, merely by lot No, 47, in the said town, in the sheriff’s ad~ vertisement and deed, was uncertain and insufficient, but the judge overruled the evidence. The defendant then gave in evidence a deed, dated 19th February, 1798, from Timothy Church to Joshua Newton, for one hundred acres of land, beginning at the north-west] corner of lot No. 47,^ and described by metes and bounds, proved the 7th Juney 1801, and recorded June 5th, 1813,

The plaintiff then called Joshua Newton, the grantor in the last mentioned deed, as a witness, in regard to the exe. cption of that deed, The defendants objected to the wit-. ness as incompetent | but the objection was overruled. The witness testified, that he moved on the premises the 26th of May, 17.99, being about 28 years of age; that he first contracted for the land with Eleazer C. son of Timothy C, which

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was about four years before he removed to the lot, and that he took a bond for the deed. He tools the deed from T., C. before he removed. When the sale was made under the judgment of J. & W. Anderson, he shewed his deed to Dr. Hyde, who thought it defective ; he, afterwards, showed it to Benjamin Hovey, judge of the C. P. of Chenango, who said he thought it defective, but advised the witness to keep possession of the land, and say nothing about the deed; end the judge took the proof of it. The witness said, the deed had no actual seal, but a flourish at the end of the grantor’s name, with the letters L. S. made with a pen. When the deed was executed, it was said there was no wax or wafers, and that a flourish with a pen was equally good. He sowed the first crop on the premises in 1797. That feeling squeamish about his title, he went to Schenectady, to purchase William Anderson’s right, or to sell his own, and was told that W. A. was dead, and that he must wait until the heirs were of age. That the witness gave two hundred dollars for the land he purchased, and paid E. C. fifty dollars, in part. That he felt no alarm until he heard of the judgment against T. C. and understood that his deed was defective On his cross-examination, he said that he had no reason to suppose that the deed to him was antedated, or that Timothy Church was not present when it was executed. The witness was present at its execution, and it was admitted by the parties to be sealed as well as signed. He gave a mortgage for the residue of the purchase, which he afterwards took up and destroyed. That the mortgage had no seal, but was signed with a flourish of the pen, as in the deed, E. C. was called as a witness, and testified that/. N. gave him a mortgage for the balance of the purchase money, and thought it was sealed with paste. Two other witnesses, who were sworn, testified that Joshua Newton first began to clear the premises in the year 1797. The points of law raised during the trial were, by consent, reserved, and the facts, as to the execution of the deed, summed up to the jury, who, under the charge of the judge, found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial

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Cady, for the defendants.

1; The sheriff’s sale was void. It was made byvirtueof an execution against the heirs and terre-lenants of IF. Anderson, and no judgment was shown to warrant such an execution. Besides, W. Anderson had no legal estate in the premises, that could be sold by the sheriff. Newton was in possession of the land, claiming to hold under the deed from T. Church, adversely. This ad-* verse possession had commenced prior to Taylors judgment, and had continued all the time. No title, therefore, passed by the sheriff’s deed. As W, A. never took posses*sion of the premises, all that he acquired was a mere right of entry. (2 Caines'1 Rep. 67. 2 Salk, ó63.)

2. Will the Court intend that the judgment was regularly revived against every person ? It Was revived on two ni-hils returned to the scire facias, without naming any of the heirs or terre-tenants, or giving notice to any one. This appears frotn the record which is referred to in the easel No person can be disturbed in his possession, without notice. ■

3. The sale by the sheriff was irregular. He ought to have sold the land in separate and distinct parcels. There were seven distinct farms, occupied by-as many tenants. Many persons would bid for one farm, who would not be willing or able to purchase the w'hole. Selling the whole together, in mass, is ruinous to the debtor, and is a practice not to be tolerated. ( 13 Johns. Rep. 102 . 14 Johns. Rep. 352 . 1 Johns. Ch. Rep. 502 . 2 Caines, 66. 11 Johns. Rep. 373 .)

4. Admitting, howaver, that the proceedings under the scire facias, and by the sheriff, were regular, yet the lessors of the plaintiff are bound by the statute of limitations. A purchaser under a judgment can be in no better situation tl^an the person under whom he claims, when the statute of limitations has once begun to run. More than 21 years have elapsed since the deed from Church to Newton,

Sudani, contra.

1. The defendant knew that the property was advertised for sale, and might have applied to this. Court to set aside the judgment, or to the Court of Chancery for an injunction to prevent the sale. He now comes too late, after a third person has become the purchaser.

2. The Court, in the cases cited, decided that the deed

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was void, for the uncertainty of the description; not that the description, by the number of the lot in a particular patent, was not sufficient. On the contrary, it has been repeatedly decided ihatsuch a description was sufficient. (1 Caines, 493. 1 Johns. Rep., 444 . 2 Johns. Rep. 40 . 5 Johns. Rep. 500 . 501. 7 Johns. Rep. 252 . 8 Johns. Rep 220 . 47S.) If the doctrine contended for by the defendant was to prevail, more than half of the sales by sheriffs would be overturned. The deed on the face of it is regular and valid, and is not to be avoided by parol evidence.

3. Again ; this objection comes-too late. The defendant should have applied to the Court to set aside the sale. He cannot now make that objection, by way of defence, in an action brought by a bona fide purchaser.

4. The statute of limitations did not commence to run until Newton went into possession on the 26th oí May, 1799, under a deed from Church. Before that time, he had no title, and his possession must be deemed to be that of Church, or the person having title. Though he may have had a good right to a deed, yet until he obtained a conveyance, his possession was that of the legal owner.

Cady,

in reply, said, that though the sheriff’s deed for the whole lot was, prima facie, good ; yet when it was shown that he had sold the whole, consisting(of seven distinct farms, it was not good. This was a fact which did not appear .on the face of the deed, and may be proved by parol.

Again; when Newton entered on the land in 1797, claiming it as his own, he held a possession adverse to all the world, and it is from that time the statute commenced. In Jackson, ex dem. Roosevelt, v. Wheat, decided in May term, (Ante, 40.) the Court held, that if the party entered into possession under claim or colour of right, whether his title was good or not, the possession was adverse. If he has a.deed, he is not bound to produce it, and may rely on his adverse possession.

delivered the opinion of the Court. An adverse possession in this case, for more than 20 years before

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the commencement of the suit, forms a decisive objection td the plaintiff’s recovery.

Timothy Church, who is admitted to have been the owner of lot No, 47, and under whom both parties claim, on the 19th of February, 1793, gave what Was considered by him and Joshua Newton, the grantee, a good and valid deed for the premises, being 100 acres of lot No. 47. Newton went into possession of this land in 1797, and sowed his first crop; and although he appears to contradict himself, as to the time when he first took possession, two other witnesses prove that his first clearings were made in 1797. There can be no pie* tence that the deed was antedated. Joshua Newton states, that he has no reason to suppose the deed was antedated, of that Timothy Church was not there when it was executed. He says the deed was signed, and allowed by the parties to be sealed; as I understand him, the parties considered it to be sealed. He executed a mortgage to Eleazer Church, to, secure part of the consideration money, which was subsequently paid, and the mortgage was destroyed. He further" states, that he and those claiming under him have been in peaceable possession ever since. It appears that the defendants are Iona fide purchasers, for valuable consideration, under Joshua Newton.

This suit was brought at the May terra of this Court in 1818, so that there has been more than 20 years’ possession, since Joshua Newton first took possession, and more than 20 years since the deed was given to him by Timothy Church.

To obviate the effect of the statute, the plaintiff seems to rely on the defect in the deed from Timothy Church to J. Newton, in this, that it had not a seal, but a mere scrawl with a pen and ink for a seal; that J. Newton admitted the validity of the title of the Jlndersons, and that thus he and those who held under him, cannot now Set up the possession, under it as adverse.

With respect to the want of a seal to the deed when it was executed, although that fact has been submitted to a jury, who have found, in conformity to the opinion of the presiding judge, that there was no seal originally to the deed, I must say, that I should hardly have been of that opinion ; but in the point of view we are now considering the case, it is im

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material, whether the instrument was sealed or riot. Had there been a sea I, the title o{Joshua Newton would have been perfect without a possession, and in that light only is it material. In Jackson e. d. Roosevelt, v. Wheat,) we decided, upon the authority of several prior cases there referred to, that to constitute an adverse possession, it was only necessary that it should have been under claim and colour of title. We said the defendant .vas under no necessity of producing the deed under which his grantor claimed title, though called for by the plaintiff, Suppose (we said) the deed had been lost, or when produced was found tp be defective, that could not have destroyed the effect of the defendant’s possession ; and we referred to repeated decisions, that a continued possession for twenty years under claim of right, ripens into a right of possession which will toll an entry ; and again, that it never had been considered necessary to constitute an adverse possession, that there should be a rightful title. Whenever this defence is set up, the idea of such a title is excluded j the fact of possession, and the quo animo it was commenced and continued, are the only tests.

It is true, that Hyde expressed his doubts of the validity of J. Newton’s deed. Hovey did the same ; but he advised him to stick to his deed, and not produce it, but insist upon holding the land under it; and this advice he pursued. 1 here is no pretence for saying that he ever abandoned his tlaim under the .deed. The only evidence of Joshua Newtons recognition of Anderson’s title is this : J. Newton states, “ that feeling squeamish about his title, he went to Schenectady, several times, to purchase William Anderson’s right, or to sell; and the last time, being informed that A. was dead, he inquired of an attorney, how he could bay Anderson’s title, and was told he must wait for the heirs to grow up.”

A mere unexecuted intention of either buying or selling, from apprehension that a title may be defective, is neither an abandonment of the right and interest actually,possessed, nor is it a recognition of a superior right residing in another person; and the only fair inference is, that to quiet and make, his title perfectly secure, he would have bought in Andersen’s claim, or sold his to him, could they have agreed on

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the terms. It is absurd to consider this, as interrupting Nezoton’s possession, oras diminishingin the smallest degree, his claim of title.

The idea was thrown out, that J. Newton's possession commenced its adverse character when the Andersons purchased, and that being within 20 years of the commencement of the suit, the plaintiff is not barred. This position is not tenable. The Anderson title was derived from Timothy Church, and when the deed was given to Newton, in Febru ary, 1798, and possession taken, it was adverse to all the world. The purchase by the Andersons forms no epoch, from whence we are to date the commencement of J. Newton's adverse possession. It was adverse to them, and to T. Church himself, after his giving the deed.

The sale by the sheriff was of specific farms, and lots of land together. I cannot entertain a doubt, but that the Court would have set aside the sale, as to the lots, upon a direct application, at the instance of W, Anderson's representatives, could they have shown that lot No. 47. was held in distinct parcels by different persons. Sales in mass of real estate, held in several parcels, are not to be countenanced or tolerated. They are oppressive and unnecessary ; and, for the reasons given by this Court, in 13 Johns. Rep. 102 . 1 Binney, 61. and 1 Johns. Ch. Rep. 502 . they deserve animadversion. In this case, there is no evidence of actual fraud; and as the sale has been acquiesced in so long, it is not necessary to the decision of the cause to consider whether it is void. For the same reasons, we forbear expressing any opinion as to the objections to the revival of the judgment by scire facias.

Judgment for thé defendants.