Smith v. Smith

Headnote

Smith v. Smith, 177 App. Div. 218 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 13, 1917, affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury. The action was brought under section's-T638-1650 of the Code of Civil Procedure to determine the' title to certain real property in the town of Horicon, Warren county. The trial court gave judgment barring the defendants from any and al] claims to the property mentioned. The defendants claimed title to a great part of the premises in question

by a deed to their father from his brother Richard in-August, 1863. At the time of the conveyance, and ever since, Richard and his descendants • have been in possession of the property, and possession was never delivered under the deed. There is no explanation why possession was not given, or why the deed was given. The Appellate Division held that “ the production of the deed and its record, under such circumstances, are not much evidence of title. Evidently there is something wanting, some fact which has been lost in the long lapse of time. The case, therefore, invites the statute of repose.”