Smith v. Burtis

1 Ant. N.P. Cas. 152

Opinion

Spencer, J.

The improvements, made by the ancestor, are sufficient to evince a claim of title, and constitute his entry a disseisin. The descent, subsequently cast, places this cause exactly in the same situation as it would have been, had the lessors oí the plaintiff been in quiet possession for twenty years. The defendants must be considered as holding tortiously; the right of possession is in the lessors of the plaintiff. The defendants must resort to a r action, if they have title. It cannot be set up in this. suit.

Footnotes

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(1)

Verdict for plaintiff.

I

Hoffman, JEmmei| and Golden, for plaintiff.

Radeliff and Ogden, for defendants.

This case was very ably argued at bar, and the doctrine of disseisin learnedly discussed. A new trial was, however, granted; the court being of opinion that if the lessors of the plaintiff would put themselves on the ungracious right of a descent oast, they were bound to prove affimatively, a tortious seisin; that a peaceable entry on land, apparently vacant, furnished per se no presumption of wrong. That the court would infer title from the lessors of plaintiff’s ten years possession, sufficient to put the tenant on his defence, but that they ought not to infer a tortious entry, or an actual ouster sufficient to bar every defence. That this would be a most rigorous conclusion, making the ancestor of the plaintiff a disseisor; it tolls the entry of the true owner, shutting out his defence, and driving him to his writ of right. 6 Johns. 191.

In the “ Code of Procedure,” passed in the state of New York, April 12, 1848, (part 2, tit. 2, c. 2, sec. 81,) it is provided as follows: “ The right of a person, to the possession of any real property, shall not be impaired or affected by a descent being cast, in consequence of the death of a person in possession of such property.”- This provision renders the law of this case -absolute, for the time to come; as it, however, cannot react, it is presumed

all rights, acquired before the passing of the law, are saved.