The Chancellor.
The lessors of the plaintiff" are the heirs at law of George Klock. In the year 1764, he was seised ih fee of three undivided sixteenth parts of the Van Horne patent, which covers the premises ; and in the year 1783, he demised parts of the 6th allotment of the patent, to different persons, for a term of years, reserving rent, and which leases, or some of them, also covered the premises* There is no colour of title shown on the part of the plaintiff, but what is founded upon that seisin, or upon that possession of the ancestor.
I shall examine the claim as founded upon each of those pretensions.
1. The seisin of Klock, the ancestor, is found to have been at the time of the partition in 1764, and to have been of an undivided part of the patent, as a tenant in common. A partition was then duly made of the patent, under an act of the colonial legislature, and lot No. 1. of the 6th allotment, was drawn to the share of Klock Fonda. The verdict says, that the patent was “ duly divided’’ by Commissioners appointed underthe colony act; and the act declared, that the partitions under it should be as valid and effectual, as if made on writ according to the course of the common law. Klock Fonda, by means of the partition, became seised in severalty, of lot No. 1. in the 6th allotment, instead of being seised, as before, of an undivided right in the whole patent. And in pursuance of this partition, and se- ■ parate seisin, it is found that Klock fy Fonda, in 1767, sub[323]*323divided lot No. 1. according to their respective interests therein, and that the lot No. 1. has since been held in severalty by Klock Fonda, and their assigns, pursuant to such subdivision.
The present ejectment is for lot No. 4, in the 6th allotment, which, on the partition, was drawn to different persons, and it is evident, therefore, that the plaintiffs, as heirs of George Klock, can lay no claim to it under the seisin and the partition of 1764.
But it is said, that the partition as to the 6th allotment, was null and void, because the other proprietor (Klock Sr Fonda excepted) had, in the year preceding, released all the lands included in the 6th allotment to three Indians in fee, in trust for all the Indians of the Canajoharie castle, and that, therefore, they had no right or interest in that 6th allotment.
One answer to this objection is, that though it be found that those proprietors made that release in 1763, yet it is further found, that in 1764, when the partition was made, they were all seised of undivided parts of the patent, and the parts of which they are so found to have been seised,- when united with the parts of Klock <£- Fonda, included the whole patent. The intendment necessarily is, that theseisin in 1764 was a legal seisin, though it is not explaimd in what manner the proprietors became reseised subsequent to the release to the Indians in 1763. The jury have foind the fact of a seisin in 1764, and that is sufficient for the purpose. The mode by which that reseisin was lawful^ effected, must be left to intendment, and we are at libertyto adopt any intendment that the fact may require.
Ancher answer to the objection is, that George Klock was apprised of the release, for his name was in it, as one of th( grantors, but he refused to execute it. And yet with this laowledge of the previous release of the lands included in th 6th allotment, he becomes a party to the partition with hose other proprietors, and he recognizes the validity of th- partition, even in respect to the lands in the 6(h allotmat. He carries the partition into effect on his part, and acepts of lot No. 1. which he and Fonda drew in the 6th abtment; and in 1767, he and Fonda subdivide that lot [324]*324according to their respective interests, and it has been since held by Klock Fonda, and their assigns, pursuant to such subdivision. After this, it cannot be permitted to the representatives of Klock to disturb the partition, or to question ps validity. They are bound by the act of their ancestor, who, with full knowledge of the release to the Indians, solemnly ratified the partition, and carried it into execution, by taking to himself his allotted portion of the patent, and which has been enjoyed by him, and by those holding under him, unmolested, down to this day.
The claim, therefore, of the lessors of the plaintiff to any part of lot No. 4. under the seisin of their ancestor in 1764, totally fails.
2. The remaining ground of right, set up on the part of the plaintiffs, is the possession of George Klock in 1783, and which possession consisted in his executing leases for the term of three years, with the reservation of rent, to divers persons, for divers parcels of land in 6th allotment. The verdict states, that those lessees were severally in possession of lands within lots No. 2, 3, and 4. of the 6th allotment, about the time the leases were dated, and that thest leases, or some of them, included the premises, and that tie lands were held and occupied by the lessees under tin leases, until they were dispossessed in 1790, by execution h ejectment. The actions of ejectment were brought ii 1789, against the possessore of these lots, and the heirs oiGeorge Klock, (who had died in 1787,) had notice of the siits, and employed an attorney to appear for them, and deind the actions. This he neglected, or omitted to do, and,consequently, judgments were obtained against the possesars by default, and they were dispossessed ; and the lessors of the plaintiff, in those ejectment suits, and their assig.s, (of whom the defendant in this suit is one,) have hadictual possession of the three lots ever since.
It thus appears, that George Klock had possession f the premises, by his lessees, from 1783 to 1787, whenhtdied, and that the lessors of the plaintiff, who are his heirs s law, continued, in that manner, in possession until 1790, an that the possession was lost by means of executions founed on judgments by default in ejectment. The plaintiffs anitheiy [325]*325ancestor have a prior possession of seven years, from 1783 to 1790, to set up against the subsequent possession of the defendant, or those under whom he holds, of eighteen years, from 1790 to 1808, when the present suit was commenced. Here is no possession on either side which has been long enough to have ripened into a right of possession, or sufficient to toll the right of entry. The short and simple question then is, can the lessors of the plaintiff, by reason of their prior possession of seven years, recover against the defendant, who has nothing to set up but a subsequent possession of eighteen years, acquired by process of laxv under a judgment by default in ejectment ? „
It was held in Smith v. Lorillard, (10 Johns. Rep. 338.) that a prior possession under a claim of right, and not voluntarily abandoned, would prevail over a subsequent possession of less than twenty years. But the rule was laid down with the qualification, that no other evidence of title appeared on either side, and that the subsequent possession of the defendant was acquired by mere entry without any lawful right. But in the case before us, the possession set up by the defendant was acquired under the authority of a judgment at law, and was consequently a lawful entry.
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The Chancellor.
The lessors of the plaintiff" are the heirs at law of George Klock. In the year 1764, he was seised ih fee of three undivided sixteenth parts of the Van Horne patent, which covers the premises ; and in the year 1783, he demised parts of the 6th allotment of the patent, to different persons, for a term of years, reserving rent, and which leases, or some of them, also covered the premises* There is no colour of title shown on the part of the plaintiff, but what is founded upon that seisin, or upon that possession of the ancestor.
I shall examine the claim as founded upon each of those pretensions.
1. The seisin of Klock, the ancestor, is found to have been at the time of the partition in 1764, and to have been of an undivided part of the patent, as a tenant in common. A partition was then duly made of the patent, under an act of the colonial legislature, and lot No. 1. of the 6th allotment, was drawn to the share of Klock Fonda. The verdict says, that the patent was “ duly divided’’ by Commissioners appointed underthe colony act; and the act declared, that the partitions under it should be as valid and effectual, as if made on writ according to the course of the common law. Klock Fonda, by means of the partition, became seised in severalty, of lot No. 1. in the 6th allotment, instead of being seised, as before, of an undivided right in the whole patent. And in pursuance of this partition, and se- ■ parate seisin, it is found that Klock fy Fonda, in 1767, sub[323]*323divided lot No. 1. according to their respective interests therein, and that the lot No. 1. has since been held in severalty by Klock Fonda, and their assigns, pursuant to such subdivision.
The present ejectment is for lot No. 4, in the 6th allotment, which, on the partition, was drawn to different persons, and it is evident, therefore, that the plaintiffs, as heirs of George Klock, can lay no claim to it under the seisin and the partition of 1764.
But it is said, that the partition as to the 6th allotment, was null and void, because the other proprietor (Klock Sr Fonda excepted) had, in the year preceding, released all the lands included in the 6th allotment to three Indians in fee, in trust for all the Indians of the Canajoharie castle, and that, therefore, they had no right or interest in that 6th allotment.
One answer to this objection is, that though it be found that those proprietors made that release in 1763, yet it is further found, that in 1764, when the partition was made, they were all seised of undivided parts of the patent, and the parts of which they are so found to have been seised,- when united with the parts of Klock <£- Fonda, included the whole patent. The intendment necessarily is, that theseisin in 1764 was a legal seisin, though it is not explaimd in what manner the proprietors became reseised subsequent to the release to the Indians in 1763. The jury have foind the fact of a seisin in 1764, and that is sufficient for the purpose. The mode by which that reseisin was lawful^ effected, must be left to intendment, and we are at libertyto adopt any intendment that the fact may require.
Ancher answer to the objection is, that George Klock was apprised of the release, for his name was in it, as one of th( grantors, but he refused to execute it. And yet with this laowledge of the previous release of the lands included in th 6th allotment, he becomes a party to the partition with hose other proprietors, and he recognizes the validity of th- partition, even in respect to the lands in the 6(h allotmat. He carries the partition into effect on his part, and acepts of lot No. 1. which he and Fonda drew in the 6th abtment; and in 1767, he and Fonda subdivide that lot [324]*324according to their respective interests, and it has been since held by Klock Fonda, and their assigns, pursuant to such subdivision. After this, it cannot be permitted to the representatives of Klock to disturb the partition, or to question ps validity. They are bound by the act of their ancestor, who, with full knowledge of the release to the Indians, solemnly ratified the partition, and carried it into execution, by taking to himself his allotted portion of the patent, and which has been enjoyed by him, and by those holding under him, unmolested, down to this day.
The claim, therefore, of the lessors of the plaintiff to any part of lot No. 4. under the seisin of their ancestor in 1764, totally fails.
2. The remaining ground of right, set up on the part of the plaintiffs, is the possession of George Klock in 1783, and which possession consisted in his executing leases for the term of three years, with the reservation of rent, to divers persons, for divers parcels of land in 6th allotment. The verdict states, that those lessees were severally in possession of lands within lots No. 2, 3, and 4. of the 6th allotment, about the time the leases were dated, and that thest leases, or some of them, included the premises, and that tie lands were held and occupied by the lessees under tin leases, until they were dispossessed in 1790, by execution h ejectment. The actions of ejectment were brought ii 1789, against the possessore of these lots, and the heirs oiGeorge Klock, (who had died in 1787,) had notice of the siits, and employed an attorney to appear for them, and deind the actions. This he neglected, or omitted to do, and,consequently, judgments were obtained against the possesars by default, and they were dispossessed ; and the lessors of the plaintiff, in those ejectment suits, and their assig.s, (of whom the defendant in this suit is one,) have hadictual possession of the three lots ever since.
It thus appears, that George Klock had possession f the premises, by his lessees, from 1783 to 1787, whenhtdied, and that the lessors of the plaintiff, who are his heirs s law, continued, in that manner, in possession until 1790, an that the possession was lost by means of executions founed on judgments by default in ejectment. The plaintiffs anitheiy [325]*325ancestor have a prior possession of seven years, from 1783 to 1790, to set up against the subsequent possession of the defendant, or those under whom he holds, of eighteen years, from 1790 to 1808, when the present suit was commenced. Here is no possession on either side which has been long enough to have ripened into a right of possession, or sufficient to toll the right of entry. The short and simple question then is, can the lessors of the plaintiff, by reason of their prior possession of seven years, recover against the defendant, who has nothing to set up but a subsequent possession of eighteen years, acquired by process of laxv under a judgment by default in ejectment ? „
It was held in Smith v. Lorillard, (10 Johns. Rep. 338.) that a prior possession under a claim of right, and not voluntarily abandoned, would prevail over a subsequent possession of less than twenty years. But the rule was laid down with the qualification, that no other evidence of title appeared on either side, and that the subsequent possession of the defendant was acquired by mere entry without any lawful right. But in the case before us, the possession set up by the defendant was acquired under the authority of a judgment at law, and was consequently a lawful entry. A possession with such a circumstance attached to it, affords a better presumption of right than the preceding possession, which had been overcome and lost by the action at law, and, consequently, the presumption which would naturally attach to the prior possession is here shifted from the prior to the subsequent possession. We are not now to inquire how the judgment at law happened to be obtained. The intendment is, that it was regularly and lawfully obtained, either from the want of title or want of attention in the opposite party, and if he had any equitable grounds for relief against the judgment, the Supreme Court would have afforded him that relief, if he had applied in due season. But it seems the judgment in the ejectment suit was acquiesced in for eighteen years, and it is perfectly right and reasonable, that the party who now seeks to regain his possession, should be put to show something more than a mere naked possession existing prior to such judgment. The presumption founded on that possession perished with the [326]*326loss of that possession by the judgment and execution at law.
We have frequently; been reminded of the language of' Lord Mansfield in Atkyns v. Horde, (1 Burr, p. 114.) that (t a judgment in ejectment was a recovery of the possession, ^noj. 0f j.jle sejs;n or freehold,) without prejudice to the right, as it might afterwards appear, even between the same p'arties.” I understand from the observation, that a judgment in ejectment does not conclude the losing party, and cannot be pleaded in bar of a fresh action between the same persons. It is certainly now understood to be an action for ■the trial of title, and it is universally used for that purpose. But to assert that a recovery in ejectment was of no manner of efficacy, except to change possession for a moment, and that the losing party might instantly turn round and attack the victor by the mere' force and presumption of the prior possession, is to pervert the observation of Lord Mansfield, and to render the action of ejectment perfectly absurd. The judgment in ejectment necessarily implies an existing possession in the defendant. The action cannot be brought against any other person than the tenant in possession, and there never could be a recovery that did not absolutely ■and irresistibly admit, that the lessor of the plaintiff had a ■better right than the tenant to that existing possession.
A recovery in ejectment does not injure the right of the parties, as it may be made to appear afterwards", but it certainly does change the presumption of right founded on the mere prior possession, short of twenty years. In Fenwick v. Grovener, (1 Salk, 258.) it was held by Lord Ch. Justice Holt, that no new ejectment could be brought by a defendant after a recovery against him, until he had quitted the possession, or the tenant had attorned to the plaintiff, for otherwise the judgment in the second ejectment might render the judgment in the first suit ineffectual. If there be any sense in this opinion of Lord Holt, it must be in allowing to a recovery in ejectment the force of shifting the presumption of right arising from the mere fact of possession.
: There is no case that will not allow so much effect to the recovery.1 In Jackson v. Dieffendorf, (3 Johns. Rep. 269.) a judgment by default in ejectment was not allowed to be a [327]*327bar to a new ejectment and recovery by the tenant. But what did the tenant show in that case 1 A previous possession of 38 years under a claim of right, and that was showing an absolute right of possession sufficient to toll an entry.
I am, accordingly, of opinion, that the lessors of the plaintiff did not prove enough in this case, by showing only a possession of seven years immediately antecedent to the recovery on the part of the defendant; and, consequently, their claim, on this ground also, fails. And this being the only pretence of right that was exhibited, I am of opinion, that the judgment of the Supreme Court ought to be affirmed.
This being the unanimous opinion of the Court, it was, thereupon, ordered and adjudged, that the judgment of the Supreme Court be affirmed, and that the defendant in error recover, against the plaintiff in error, his costs in defending the writ of error, to be taxed, &c. and that the record he remitted, &c.
Judgment of affirmance.