Jackson ex dem. Krom v. Brink

Curia, per Savage, Ch. J. Admitting the first point to be correctly decided according to Jackson v. Delancey, (13 John. 551-2;) yet I think the judge erred on the other point. It is undoubtedly true, that the possession of one tenant in common, in general, enures to the benefit of all. But it is equally true, that one tenant in common, may oust his co-tenant, and hold adversely to him. It will not be presumed from a sole possession, unless accompanied with some notorious act, or claim, which is sufficient to give character to the possession. (5 Wheat. 124. 7 id. 120, 1.15 John. 501.) In this case, it seems to me, there is abundant evidence of a public claim made by the widow to the individual ownership of the right of the lessor in the premises in question. The sheriff’s deed is certainly evidence, that she purchased something; some supposed right of the lessor to land in Marbletown ; which right she located .upon the premises in question. Here was a public act. A sale at the court house a purchase and payment of money; her declarations afterwards, that she owned land of her own, all go to mark the change in the character of the possession. It is not necessary, that the deed should convey a good title. It is enough that it gives color to the claim of title set up under it. The judge certainly misapplied the rule, that a possession, to be adverse must be hostile in its inception. The rule is so laid down, (Brandt v. Ogden, 1 John. Rep. 156,) but has often been subsequently qualified, and is understood not to apply to the entry upon the premises ; for it has often been decided, that a possession taken under the true owner may, by a disclaimer of his title, subsequently become adverse. (16 John. 301. 5 Cowen, 74.) It was certainly not neces [485] sary to change the occupancy, in order to change the character of the tenancy or claim of title. It seems to me, that "the defendant made out an adverse possession in himself, and the widow, under whom he claims, from the time of the sale in 1798; hut clearly from 1800, the date of the deed. A new trial, therefore, should be granted with costs to abide the event. New trial granted.