Jackson ex dem. Viely v. Cuerden

2 Johns. Cas. 353

• Court: New York Supreme Court
• Decided: October 15, 1801
• Status: Published

Opinion

*Per Curiam.

The letter of the defendant was sufficient, prima facie, for the plaintiff to recoger ; but it did not make the defendant a tenant to the plaintiff. The defendant only wished to be deemed the tenant in possession, or, in other words, the occupier, having the equitable right of pre-emption. This was sufficient evidence to enable the plaintiff to recover; but, on the other hand, the defendant was not precluded from showing that he grounded his letter on a mistake, or that the fee existed in himself, or out of the plaintiff. He might be precluded from setting up twenty years adverse possession, for that is only setting up the statute of limitations; and his acknowledgment by his letter takes away the statute. (Bull. N. P. 104.) The idea of notice is inapplicable. Here was no tenancy, but an adverse holding. (Cowp. 622.)

A new trial must be granted, for the misdirection of the judge.

.New trial granted.(

a)

(a) See Tillinghast’s Adams on Ejectment, ed. 1846, pp. 33, 56, 105, 275, notes.