Jackson ex dem. Roosevelt v. Wheat

18 Johns. 40

Opinion

Per Curiam.

1. The possession of the defendant was, undoubtedly, adverse : it has been continued for a period of between40 and 50 years, under a claim of title., by purchase from Gillet, who had a deed. It was not necessary to produce that deed, though called for by the plaintiff. Suppose the deed had been lost, or when produced was found to be defective, that could not have destroyed the effect of the defendant’s possession. In Smith v. Lorillard, (10 Johns. Rep. 356) Kent, Ch. J. said, “ that after a continued possession for twenty years, under pretence or claim of right, the actual possession ripens into a right of possession which will toll an entry and in Smith v. Burtis, (9 Johns. Rep. 180.) Spencer, J. said,(Van Ness, J, and Yates, J.concurring) that “ it had never been considered necessary to constitute an adverse possession, that there should be a rightful title. Whenever this defence is set up, the idea of right is excluded ; the fact of possession, and the quo animo it was commenced and continued, are the only tests:" And in Jackson v. Ellis, (13 Johns. Rep. 120.) the Court said, that “it had been repeatedly ruled in this Court, that an entry under claim or colour of title, is sufficient to constitute an adverse holding. It is not necessary, for this purpose, that the title under which such entry is made, should be a good and valid title.” (2 Caines, 183.)

2. The plaintiff claims to recover one fourth of the premises, on the demise of M. Roorbach, on the ground that she married R. in the summer of 1777, after the death of her father and mother. The defendant has been in possession above forty years, and it was forty-one years since M. R.'s marriage. If the defendant’s possession commenced before her marriage, then, according to the opinion of the Chancellor, in Demarest v. Wynkoop, (3 Johns. Ch.Rep. 129—138.) upon a review of all the cases, and which we consider as sound law, Mrs. R. can only avail herself of the disabilities existing when the right of action accrued ; and the disability which then existed was infancy ; for her right of a claim accrued when the defendant first took possession, and that was before her marriage. The case of Doe v. Jesson, (6 East, 80.) is in point.

It is, therefore, unnecessary to consider the question, whether the defendant ought not to have been permitted to prove that the premises in question were not within the bounds of the Minisink patent.

Judgment for the defendant.