Jackson ex dem. Vanderlyn v. Newton

SpenckR, Ch. J. delivered the opinion of the Court. An adverse possession in this case, for more than 20 years before [360] the commencement of the suit, forms a decisive objection td the plaintiff’s recovery. Timothy Church, who is admitted to have been the owner of lot No, 47, and under whom both parties claim, on the 19th of February, 1793, gave what Was considered by him and Joshua Newton, the grantee, a good and valid deed for the premises, being 100 acres of lot No. 47. Newton went into possession of this land in 1797, and sowed his first crop; and although he appears to contradict himself, as to the time when he first took possession, two other witnesses prove that his first clearings were made in 1797. There can be no pie* tence that the deed was antedated. Joshua Newton states, that he has no reason to suppose the deed was antedated, of that Timothy Church was not there when it was executed. He says the deed was signed, and allowed by the parties to be sealed; as I understand him, the parties considered it to be sealed. He executed a mortgage to Eleazer Church, to, secure part of the consideration money, which was subsequently paid, and the mortgage was destroyed. He further" states, that he and those claiming under him have been in peaceable possession ever since. It appears that the defendants are Iona fide purchasers, for valuable consideration, under Joshua Newton. This suit was brought at the May terra of this Court in 1818, so that there has been more than 20 years’ possession, since Joshua Newton first took possession, and more than 20 years since the deed was given to him by Timothy Church. To obviate the effect of the statute, the plaintiff seems to rely on the defect in the deed from Timothy Church to J. Newton, in this, that it had not a seal, but a mere scrawl with a pen and ink for a seal; that J. Newton admitted the validity of the title of the Jlndersons, and that thus he and those who held under him, cannot now Set up the possession, under it as adverse. With respect to the want of a seal to the deed when it was executed, although that fact has been submitted to a jury, who have found, in conformity to the opinion of the presiding judge, that there was no seal originally to the deed, I must say, that I should hardly have been of that opinion ; but in the point of view we are now considering the case, it is im [361] material, whether the instrument was sealed or riot. Had there been a sea I, the title o{Joshua Newton would have been perfect without a possession, and in that light only is it material. In Jackson e. d. Roosevelt, v. Wheat,) we decided, upon the authority of several prior cases there referred to, that to constitute an adverse possession, it was only necessary that it should have been under claim and colour of title. We said the defendant .vas under no necessity of producing the deed under which his grantor claimed title, though called for by the plaintiff, Suppose (we said) the deed had been lost, or when produced was found tp be defective, that could not have destroyed the effect of the defendant’s possession ; and we referred to repeated decisions, that a continued possession for twenty years under claim of right, ripens into a right of possession which will toll an entry ; and again, that it never had been considered necessary to constitute an adverse possession, that there should be a rightful title. Whenever this defence is set up, the idea of such a title is excluded j the fact of possession, and the quo animo it was commenced and continued, are the only tests. It is true, that Hyde expressed his doubts of the validity of J. Newton’s deed. Hovey did the same ; but he advised him to stick to his deed, and not produce it, but insist upon holding the land under it; and this advice he pursued. 1 here is no pretence for saying that he ever abandoned his tlaim under the .deed. The only evidence of Joshua Newtons recognition of Anderson’s title is this : J. Newton states, “ that feeling squeamish about his title, he went to Schenectady, several times, to purchase William Anderson’s right, or to sell; and the last time, being informed that A. was dead, he inquired of an attorney, how he could bay Anderson’s title, and was told he must wait for the heirs to grow up.” A mere unexecuted intention of either buying or selling, from apprehension that a title may be defective, is neither an abandonment of the right and interest actually,possessed, nor is it a recognition of a superior right residing in another person; and the only fair inference is, that to quiet and make, his title perfectly secure, he would have bought in Andersen’s claim, or sold his to him, could they have agreed on [362] the terms. It is absurd to consider this, as interrupting Nezoton’s possession, oras diminishingin the smallest degree, his claim of title. The idea was thrown out, that J. Newton's possession commenced its adverse character when the Andersons purchased, and that being within 20 years of the commencement of the suit, the plaintiff is not barred. This position is not tenable. The Anderson title was derived from Timothy Church, and when the deed was given to Newton, in February, 1798, and possession taken, it was adverse to all the world. The purchase by the Andersons forms no epoch, from whence we are to date the commencement of J. Newton's adverse possession. It was adverse to them, and to T. Church himself, after his giving the deed. The sale by the sheriff was of specific farms, and lots of land together. I cannot entertain a doubt, but that the Court would have set aside the sale, as to the lots, upon a direct application, at the instance of W, Anderson's representatives, could they have shown that lot No. 47. was held in distinct parcels by different persons. Sales in mass of real estate, held in several parcels, are not to be countenanced or tolerated. They are oppressive and unnecessary ; and, for the reasons given by this Court, in 13 Johns. Rep. 102. 1 Binney, 61. and 1 Johns. Ch. Rep. 502. they deserve animadversion. In this case, there is no evidence of actual fraud; and as the sale has been acquiesced in so long, it is not necessary to the decision of the cause to consider whether it is void. For the same reasons, we forbear expressing any opinion as to the objections to the revival of the judgment by scire facias. Judgment for thé defendants.