Thompson v. . Burhans

61 N.Y. 52

• Court: New York Court of Appeals
• Decided: September 5, 1874
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The issues presented by the pleadings involve two propositions: First. Whether the 4,000 acres of land, described alike in the complaint and answer, are, as the plaintiff alleges, in the north part of township number forty-seven; or whether they are, as alleged by the defendants, a gore of land wholly north of, and adjacent to the north line of that lot. Second. Whether, if they are as the plaintiff alleges within that township, the plaintiff has shown himself to be vested with the title to them. The first proposition is one of fact, upon which the evidence is fairly conflicting, and has been disposed of, as such, in favor of the plaintiff, and is not reviewable here. In determining the second proposition we may assume, for the purpose of giving the plaintiff the full benefit of every fact proved by him, that the defendants entered upon the premises without pretence of right, as did the defendant in Jackson v. Harder (4 J.R., 203, 211) (a fact not established), even then a stranger to the title would have no right to maintain ejectment against them. In such case, the party seeking to oust them must, if he relies upon prior possession alone as evidence of his title, prove, not by hearsay or other inadmissible evidence, but by evidence which, if objected to, is competent, a possession from which a title may be inferred; or if he rely upon written evidence of his title, it must be preceded with such preliminary proof (if any be necessary), as will entitle the proof offered to be read, and, by one or the other character of evidence, establish a prima facie title to the premises in controversy. The plaintiff's case depending upon his possession and the possession of those under whom he claims, standing alone, rests upon no foundation. The township contains 25,200 acres; the land, the title to which is in controversy, consists of 4,000 acres, stretched along the whole northern boundary of that township. The plaintiff's possession covers, at most, only about 400 acres, situate in the south-east part of the same township, miles distant from the disputed territory. His case, resting solely upon the conveyance purporting to have been made by the comptroller, is not improved. No case has gone so far as to hold that a party in possession, however wrongful, can be compelled to surrender it to another who cannot produce at least competent prima facie evidence of his title to what he claims. The comptroller's deed of May 1836, upon which his claim of title, so far as it depends upon written evidence, rests, is, at best, merely evidence of the regularity of the sale itself, which, without proof of the proceedings prior to and authorizing the sale, afforded no evidence of his right to sell, and hence, conveyed no title to the premises described in it. (Beekman v. Bigham, 5 N.Y., 366, 367, 368.) To this defendants, though strangers to the title, had the right to object. (Sinclair v. Jackson, 8 Cow., 543.)

The act of 1860 applies, in terms, to conveyances to be thereafter executed, and hence, does remove the objection to the deed offered in evidence. (Sess. L., 1860, p. 352.) This deed, notwithstanding it was executed without authority, and afforded no evidence of title, gave color to the plaintiff's claim of title to all the land of which he, or those under whom he claimed, was in the actual or constructive possession. (Munro v. Merchant, 28 N.Y., 9.) In this case the actual possession extended over about 400 acres. The premises purporting to have been conveyed by the comptroller's deed consisted of three several large tracts of land of 6,300 acres each; one to be laid out in the north-east quarter, one in the north-west quarter, and the other in the south-east quarter of township number forty-seven, the three parcels containing, in all, nearly 19,000 acres. The plaintiff's possession was in or near the south-east corner of the 6,300 acres which, by the deed, were to be laid out in that corner of that town; this possession, if it could by possibility be considered to have been extended, by construction, to the whole 6,300 acres, of which it was a part, cannot be extended to other subdivisions of the same town; even though fuel and fencing timber had been taken from "so large a tract of forest," it could not be considered as constructively in possession of the occupant of 400 acres in so distant a location, though included in the same deed, which gives color of title to what was in his actual possession; and, for the same reason, he cannot be regarded as in possession of the north-east and north-west quarters of township forty-seven, along the north line of which the 4,000 acres in controversy are situate, and thereby, under the act of 1860, be entitled to the presumption that all requisite proceedings, prior and subsequent to the comptroller's sale, were had, and thus validate his deed.

I am, therefore, of opinion that the judgment of the Supreme Court should be reversed, and a new trial ordered.