Jackson ex dem. Davy v. De Walts

Headnote

a died seised of ¡eavmgawilíoxv an oniy son, his daughter. The widow entered into possession of the land; and the daughter having married B., the widow gave permission to B. and his wife, to take possession, and occupy a part of the land; and B. continued in possession, claiming to hold in right of his wife, hi an action of ejectment, brought by the heir at law, against B., it was held, that the legal intendment was, that the widow entered as guardian, in socage, to her infant son; au<l that the defendant, having entered by permission of the guardian, and under the title of tilt; heir at law, could not set up a title in a third person, in contradiction to the title under which he so entered.

THIS was an action of ejectment, for land in the Springfield patent. The cause was tried at the Otsego circuit, in June last, before Mr. Justice Spencer. At the trial, the plaintiff proved that Thomas Dav y purchased the lot in question, in 1771, and possessed it

until 1777, when he died. The lessor of the plaintiff was his only son and heir at law. His widow, and son, and a daughter, (who was the wife of the defendant,) abandoned the place during the war; and, afterwards, the widow and family returned and took, possession, the lessor of the plaintiff being still a minor. The widow, about 19 years ago, gave her daughter and the defendant permission to occupy part of this lot. They have taken possession of 50 acres, claiming to hold it under Thomas Davy, in right of the wife of the defendant, as heir.

The defendant offered to prove a sale of the lot, for quit-rent, in 1772, and a lease to the defendant, in 1809, from Joseph Winter, who claimed title under that sale. This evidence was rejected. The defendant disclaimed to hold under the lessor. The judge charged the jury, that as the defendant came into possession, under the title of Thomas Davy, and by permission! of the widow, he could not set up a title, under the sale for quit-rent; and the jury, thereupon, found a verdict for the plaintiff.

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