Jackson ex dem. Wright v. Dieffendorf

Van Ness, J. delivered the opinion of the court. Shaft a possession of 38 years be disturbed, because, from a recent survey, it appears not to correspond with the parRti011 deeds executed 60 years before ? Shall not the parties to that partition, and all those who claim under them, be concluded by so long an acquiescence ? It is unquestionably the true rule, and every legal presumption, every consideration of policy requires, that this evidence of right should be taken to be conclusive. A location made in 1765, and probably, in exact conformity to the survey made on the partition in 1744, and quietly suffered to be continued by the proprietors of the adjoining lot, until 1803, is, and ought to be, final and conclusive. These circumstances furnish the best and most satisfactory evidence of the true line of division between the two lots. This general doctrine will not be denied, and the only question is,' as to the application of it to the present case. What is to be the effect upon this title, on the recovery in ejectment by default, and an entry pursuant thereto in 1803 ? This is the real point in dispute between the parties. x The recovery, in 1803, against the lessors of the plaintiff, does not conclude them from setting up this evidence of title. The amount of a recovery in ejectment is accurately and forcibly stated, by Lord Mansfield, in the case of Atkyns v. Horde, (1 Burr. 114.) It is a recovery of the possession (not of the seisin or freehold) without prejudice to, the right, as it may afterwards appear, even between the same parties. He who enters under it, in truth and substance, can only be possessed according to right. If he has a freehold, he is in as a freeholder. If he has a chattel interest, he is in as a termor. If he has no title, he is in as a trespasser. If he had no right to the possession, then he takes only a naked possession. This is the obvious and established ■ construction of the nature and effect of a judgment in the action of ejectment. It follows, therefore, that Wright, one of the present lessors of the plaintiff, lost the pos [271] session only, without prejudice to the right. The right under the location, after the possession and acquiescence therein, remains in the lessors of the plaintiff, and is not impaired by the recovery in 1803. The plaintiff must, therefore, have judgment. Yates, J. and Thompson, J. not having heard the argument in the cause, declined giving any opinion. Judgment for the plaintiff,