Doe ex dem. Clinton v. Phelps

Headnote

Where a deed was executed^irerj torney, from tóref *?7he Tent^mvl the proved to be md^and d°ed"Sif was ^d^that af M^years, oHhe Cpower would be presumed.

THIS was an action of ejectment, and was tried at the last cireuit, in Schoharie county, before Mr. Justice Spencer. The plaintiff claimed the north part of lot No. 29. in a patent granted the 11th October, 1765, to Frederick Young and 19 others, for 20,000 acres of land, in the town of Sharon. At the trial, the lessors gave in evidence, 1. An exemplification of the patent; 2. A deed, dated 9th September, 1766, from John S. A. Glen, John Cuyler, Garrit A. Lansing, and Henry C. Cuyler, to Peter Dubois, for four twentieth parts of the said tract; 3. A deed, dated 14th May, 1767, from Philip Livingston, Peter Dubois, Alexander Colden, Frederick Young, for himself, and also as attorney for Cornelius Ten Broek, Abraham Yates, jun. Nicholas Oxinier, Young, and Johannis Keplier, to Anthony Van Dam, reciting the power of attorney from them to the said Frederick Young, accompanied with a map of the premises, for the whole patent; 4. A deed, dated 2d September, 1767, from Anthony Van Dam, reciting the previous conveyances, to Peter Dubois, for lots No. 4. 17. 43.5.16. 42. 6.15. 50. 7.14. and 9. each containing 400 acres; and, 5. A deed dated 3d November, 1772, from Peter Dubois, in which his trustees were joined, to Walter Franklin, under whom the lessors derived title, for lot No. 9. and twelve other lots. The lessors are the heirs at law of Walter Franklin.

Jabes D. Hammond, a witness, testified, that the defendant (];c] jjoj- pretend to claim a title to the premises; that the lots in the patent to Young and others, were generally held under, and according to, the deed from Anthony Van Dam; that there are two lines run on the northern boundary of the patent, the distance between which is about eight chains; that the corner trees of lot No. 9. are not to be found, and the defendant claimed a right to the space between the two lines, opposite to lot No. 9. Sic.

The witnesses for the defendant testified, that part of the defendant’s farm had been improved 23 years; that the northwest corner of lot No. 9., which is the northeast corner of lot No. 8., was marked in the south' of the two lines above mentioned. One Keyes formerly held land opposite to lot No. 9. and improved it up to the south line, before he leased the alleged intermediate space, or gore, to the defendant. The lot adjoining No. 9. is held up to the north line, as are all the lots eastward, on Crosby’s patent. The defendant possessed the intermediate space, under Keyes, about- nine years. The possessors of lot No. 9. have claimed that space, as a gore, and the two lines appeared to be about the same age.

The plaintiff, though called on for that purpose, did not produce a power of attorney to Frederick Young, from any of the patentees, nor did he produce any other deed than those above mentioned.

A verdict, by consent, was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts; the judge, on account of his relationship to the lessors, declining to give any opinion on the points raised.