Jackson ex dem. Hardenbergh v. Schoonmaker

Kent, Ch. J. delivered the opinion of the court. In this case, a regular paper title to the premises was shown to reside in those lessors of the plaintiff, who are daughters of Josephat Dubois. He died in the year 1757, and by his will, an estate was given to his widow, for life, provided she remained his widow, (as she did,) and after her death, the remainder in fee to his daughters. 1. The first, and, indeed, the only material question of law arising upon the case is, whether the lessors are not barred by the statute of limitations. Assuming it as a [402] fact, that Dubois was not disseised, and that no adverse possession existed against him, in his life-time, of the premises recovered, which are the uplands of Stoney Kill, it is then a settled position, that no subsequent disseisin or adverse possession, would bar the right of the lessors, if they brought their suit (as it appears they did) within 20 years after the death of the widow. Neither a descent cast, nor the statute of limitations will affect a right, if a particular estate existed at the time of the disseisin, or when the adverse possession began, because a right of entry in the remainder-man cannot exist, during the existence of the particular estate ; and the laches of a tenant for life will not affect the party entitled» An entry to avoid the statute, must be an entry for the purpose of taking possession, and such an entry cannot be made during the existence of the life estate. (Hunt v. Bourne, 1 Lutw. 779. 781, 782. 2 Salk. 422. 1 Burr. 120. 126, 7 East, 311, 312. 319. 321.) . 2. The second material point made in the cause is, as to a disseisin or adverse possession, existing at the time of the death of Dubois, On this point, the testimony is contradictory, and must be very uncertain, from the great length of time which has elapsed since the death of Dubois, which was 51 years before the time of the trial. Five witnesses on the part of the defendant, testified to facts in favour of the existence of such adverse possession, though none of the facts tended to establish a disseisin, in the strictly technical sense of the term. Four witnesses on the part of the plaintiff, testified to facts contradicting the existence of any such possession. Considering the remoteness of the period to which the witnesses referred, the loose and uncertain tenor and manner of their testimony, the ambiguous nature of the possession set up, the contradictory and nearly balanced testimony upon the subject, and that the cause was tried [403] by a struck jury, eight of whom had a view of the premises, there is no probability that any new light can be thrown upon the subject. The court would have been as well, if not better satisfied, if the verdict had been the other way; but under the circumstances of the case, they do not think it would consist with the exercise of a sound discretion, to disturb the verdict. Motion denied.