Jackson, ex dem. Beekman and Wife against Witter.Headnote
In an action of ejectment, it was held that a map of par-on'whtch'the’ erehad ¡ndors-ed a partition, was not ad-missibie as tteor^eisinlin the person un-lessors of the ecb'though'of" especially146 ’ when unac-with posses, ouiTshowing*1' the prior title partition.. This was an action of ejectment, for lands in Orange county. The cause was tried at the Orange circuit, on ^le 4th June, 1806, before Mr. Justice Tompkins.
The plaintiff, in right of his wife, claimed -an undivi- . _ f . ded part of lot No. 33, m a tract of land called the angle Minisinckpatent, being the premises in question, un(]er Henry Van Ball. To show the right of Van Ball, the plaintiffs offered in evidence an exemplification of a map, under the great seal of the state, made of various lots in angle the said patent, among which is the lot No. 33, marked “ No. 33, Henry Van Ball, 1128 acres and one chain.” On this map there was an indorsement of a partition made by certain commissioners, pursuant to an act 0f the legislature, in 1708, of the angle of the Mini-sinckpatent, which, after specifying the division by ballot, mentions, that “Lots No. 24 and No. 33, fell to Henry Van Ball.” This endorsement of partition bears date the last day of March, 1715, and is signed by the persons who were chosen to make the partition, and proved before one of the judges of the Supreme Court, and recorded in the office of the Secretary of State. The defendant’s counsel objected to this evidence, but it was admitted by the judge. The case detailed other evidence given at the trial by the plaintiff, as well as by the defendant, and several points were made on the argument; but as the court confined their opinion to one point, the admissibility of the map and partition, it is unnecessary to state the other facts and questions in the cause. The jury having found a verdict for the plaintiffs, a motion was novv made to set aside the verdict, and for a new trial, for the misdirection of the judge.
Fisk, for the defendant.
Riggs, contra.
On the argument of the motion for a new trial in this case, several points were presented to the consideration of the court. We confine ourselves, however, to the first, which relates to the map of partition in 1769, which was offered and received as evidence of title and seisin in Henry Van Ball, under whom the lessors of the plaintiff make title to the premises in question. This map purports to have been made by commissioners appointed to make partition of certain lands, including the premises, pursuant to a colonial act of 1708. This was a mere ex parte proceeding. The commissioners had no power to examine into and determine the titles of the part ies to the premises they were appointed to divide Though it is a very ancient transaction, and might be good evidence as to the boundary or location of the premises, it never can be considered as conveying any title. The verdict must therefore be set aside, with costs, tó abide the event of the suit.
New trial granted.