Byrne v. Van Hoesen

Headnote

Where A. was in possession of land, which had also been possessed by his ancestors, and died leaving a widow and three children, under age, and the widow entcivd and kept possession; it was held, that ohc might maintain trespass, and that having again married, her husband must join in such action.

Where a widow enters in such a case, the presumption of law is, that she enters, as guardian in socage to her children, and is in possession by^ right. A guardian in socage' has the custody of the land, and may receive the rents and profits, for the benefit of the heirs ; and has such, an interest in the land, as to enable him to maintain trespass. Such a guardianship ceases when the infant arrives at the age of fourteen; but if the infant docs not choose another guardian, the former guardianship will continue.

THIS was an action of trespass quare clausum fregiiy. for entering the plaintiff’s close, and cutting down and carrying away trees,- &'c.-

Plea, the general issue.

The plaintiffs proved, at the trial, that the defendant cut wood on a lot called Byrne's lot. The grandfather and father of Albett Vari Loan, the younger, possessed the lot, and after them, Albert, the younger. The father of the' defendant frequently cut wood there, twenty years ago.- Albert Van Loan, the elder, was possessed of the locus in quo, from 1750 to his death, in 1754. The plaintiffs then produced a deed, dated the 4th of Decem ber-, 1754, from Albert Van Loan, the elder, to the father of young Albert, for one-third of the bush and woods which he claimed in the patent of Lunenbiirgh. The plaintiffs then offered to' prove,- that the said bush and woods included the locus in quo; but the defendant contended that the soil did not pass by these words, and the judge ruled otherwise. The plaintiffs then proved, that young Albert, after his- father and his grandfather possessed the premises, between thirty and forty years, was in the sole possession; and that when he died, his widow, now the plaintiff’s wife, came into possession, and has since possessed the land. Since she married Byrne, the plaintiffs have had possession of the premises. The defendant cut and carried away wood, within the years 1802 and 1806 ; and he claimed a right to cut wood, as having a right of common. Young Albert died in 1798,. leaving a widow and three children, which children are ydt living, and are minors. / The premises are joined on one side by enclosed fields; but on the other sides-are not enclosed.

The judge charged the jury, that the plaintiffs had not made out a paper title, and that the only question was as to the possession. The jury found a verdict for the plaintiffs. A motion v/as made to set aside the verdict, and for a new trial.