Smith v. Smith

177 A.D. 218, 163 N.Y.S. 863, 1917 N.Y. App. Div. LEXIS 5222

Opinions

Kellogg, P. J.:

The defendants claim title to a great part of the premises in question by a deed to their father from his brother Richard in August, 1863. At the time of the conveyance, and ever since, Richard and his descendants have been in possession of the property, and possession was never delivered under the deed. Powell was well to do; Richard was poor and in financial difficulties. There is no explanation why possession was not given, or why the deed was given. The production of the deed and its record, under such circumstances, are not much evidence of title. Evidently there is something wanting, some fact which has been lost in the long lapse of time. The case, therefore, invites the statute of repose. Under all the circumstances we favor an affirmance of the judgment, with costs.

All concurred, except Sewell, J., who dissented in an opinion, in which Woodward, J., concurred.