Jackson ex dem. Colden v. Moore

13 Johns. 513

• Court: New York Supreme Court
• Decided: October 15, 1816
• Status: Published

Opinion

Per Curiam.

The premises in question are a part of lot

bio. 15;, in the artillery patent; and the lessors of the plaintiff are Cadwallader R. Coldsn, and the heirs of Abraham. Walton, The first question that arises is, whether any title has be,en shown in the lessors, or any of them. The patent was granted in the year 1764,-to Joseph Walton, and twenty-three other persons, for twenty-four thousand acres of land; In the year 1765, a partition of the patent was made among the then proprietor^ ; and for the purpose of making the partition, a deed in trust was executed to Abraham Walton, who covenanted, on his part, to execute releases in . fee, to the respective owners of the lots, according to. such partition. This deed contained a recital, fhat the parties of the first part ha& by sundry piesne conyéyances, become seised of the lands granted by the patent, in the proportions'therein mentioned, according to which lot No.; 15., including the premises ip question fell to Cadwallader Colden, who was a party to the deed, and from whom Cadwallader R. Colden derives his title. Eight of the original patentees were parties to this deed ; so that, as to eight twenty-fourth parts of the premises, the title was clearly conveyed to Abraham Walton. It was admitted upon the trial, that the patent was gene-, rally settled, and held underhand according to,.this partition, Thesé facts,'after such a lapse of time, are sufficient tó presume a title to thé whole of the premises in the heirs of Abraham, Walton, or that he had executed the trust, and conveyed in severalty, to the respective owner's;; and in either case, the title would be thus proved in some of the lessors. The principles laid down and-adopted by this court, in Doe v. Phelps, (9 Johns. 171.,) and Doe v. Campbell, (10 Johns. 475.,) are. directly in point; and would fully warrant a judgment for the plaintiff, Wére itmot for the adverse'possession on the, part of the defendant.' The. lessor, Cadwallader R. Colden, can claim nobenefit'from his in* fancy; for the statute, if it has run at all,, began to run in the. lifetime of the ancestor, and the' facts. disclosed upon the tidal show a very strong case of' adverse possession. As. early a*, the year 1775, possession Was taken of one hundred acres of lot; No. 15. under a lease from Anthony Farrington.;' This lease was not produced upon the trial, but its,loss and contents were sufficiently proved, and appeared to be a lease in fee, at a nominal rent. And although- there -Was no legal transfer of the lease to Perkins, yet he, in the year 1778, look possession, claiming under it; and continued such possession, except while it, was interrupted by the war, until the year 1798, when he-sold and conveyed to Solomon Williams, who, in 1803, conveyed to Comstock; and in 1804, Comstock conveyed to the defendant. - These facts' show, very satisfactorily, such an adverse possession as will protect the defendant against the present action,, arid upon this ground alone judgment is given for the defendant;

Judgment for the defendant.

(a)

In the .case of the same lessors against John Parish, the premises in question -Were á ’part of the ’land-formerly held by Perkin*» and judgment was /also given’fór.the defendant., on thegróund ofa'd ver se possession. But in the five,other causes, at the suit ófthe same lessor*,, depending ob thé same case,-judgment was,given ^forth? plaintiff), as .no adverse possession was attempted to be set up.