Jackson ex dem. Livingston v. Hallenbeck

13 Johns. 499

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

Opinion

Thompson, Ch. J.,

delivered the opinion of the court. The premises in question are about 34 acres of land, in lot No. 124..,. in the Lunenburgh patent. The case does- not disclose who' are the lessors of the plaintiff, and we cannot, therefore, say whether they have made out a title in themselves. If, however, the decision of the case turned upon the question of title, it might be proper to call upon the parties for this information. But, for the present, we assume, that such title is made out in some of the lessors, so as to entitle the plaintiff to recover, were it not for the adverse possession shown on the part of the defendant. From this testimony, it appears that the first occupants of the premises were Peter Bastían and Jacob Egbertson, and* upon the nature of this possession, and the manner in which it was afterwards acquired by the defendant’s ancestor will, in a great measure, depend the result of this suit. From the testimony of John C, Hollenbeck, it appears that Casper I, Hollenbeck, the father of the defendant, obtained possession in part from Bastían, and in part from Egbertson, claiming the land, however, under a purchase, from John Low. On the part of the plaintiff* it is contended, that Bastían and, Egbertson were the tenants of Johannes Provoost,.under whom the lessors of the plaintiff claim, and* therefore, the attornment to Hollenbeck was void.

To a right understanding of the nature of the possession, -it will be proper to notice the relation in which Low, under whom the defendant claims, stood to the Provoosts, and how his right originated. He, it appears, married Sarah Provoost, the daughter and heir at law of Jacob Provoost, who, together with Samuel and Isaac Provoost, were the devisees in the will of Johannes Provoostj dated in the year 1751. There being á dispute as to what right Sarah had in the land of her grandfather, Johannes, the other devisees, Isaac and Samuel, together .'with the widow of Johannes, in the year 1772, coiiveyed to John Low and Killian Van Rensselaer,, one fourth of a sixth, and one sixth of a sixth of the lands granted in the patent, to bé located by Robert Yates, Manning Vischer, and Gysberl Marsellis, on any lands they should thing proper, either in the possession of the parties of the first part, or their tenants, and either oil any lands that had been allotted to Johannes, their grandfather, or to his son Abraham, and in case of - any deficiency,, then to be taken out of any lands which lay in common ánd. undivided. It appears, that the possession taken by Casper I. Hallenbeck, claiming under a purchase from Low, was more than 20 years before this suit was brought.- Under this state of facts, no great weight is to be attached to the alleged tenancy' of Bastían and Egbertson. The extent of their improvements was very inconsiderable. Bastían was a negro man, formerly owned by Johannes Provoost, and, as the Case states, paid his rent fin mowing. Egbertson, also, paid sopie trifling rent in work. He has, ■ however, been dead nearly ; 30 years, and Samuel Provoost, (to whom the rent is said to have been paid,) nearly 40 years, which makes it, at all events, a very stale tenancy. But admitting they might be considered tenants of Provoost, it would not necessarily follow that the possession taken from them by Hallenbeck was fraudulent and void. Bos», also, claimed to derive his title from, Johannes Provoost, in right of his wife Sarah, under the deed of 1772. And, under this deed, the persons appointed to locate Sarah?s right, had authority to make such location upon any part Of the land, whether in the occupation of a,tenant or not,'and'after such a lapse of time, and such a length of possession, it is no more than reasonable to presume such location to have been made upon the premises, and possession taken under such right. This presumption is very much strengthened by the circumstance, that when Casper I. Hallenbeck took the possession, Isaac and Abraham Provoost lived near the premises, and no objection appears to have been made. Under these circumstances, the tenancy set up in Bastían and Egbertson', is too vague and equivocal to work any prejudice to' the defendant’s possession; and this possession haying been taken, under claim of title from Low, and held for more than 20 years, the defendant ought not now to be disturbed, and is, accordingly,, entitled to judgment.

Judgment for the defendant.