Jackson, ex rel. Smith v. Long

By the Court, Sutherland, J. The evidence establishes a clear, distinct and uninterrupted adverse possession of the respective parts of the farm for more than 30 years. The farm was divided by the heirs of Bradt before the conveyance to the lessor, or those under whom he holds. Those conveyances, therefore, were not of an undivided portion of the farm, but of a divided half, according to the division fence. The evidence renders it extremely probable that it was intended when the partition was made by the heirs of Bradt, that the part of the farm now owned by the lessor should contain less land than the other: for it appears that all the buildings, garden and orchard were on that part, and if the division was designed to be equal in value, more land would naturally have been given to the other. However, no matter what [172] were the intention of the parties ; their rights are now settled ^y lapse of time. The manner in which the parties have paid the landlord’s rent, in no respect affects their rights in this case. The lease covers the whole farm ; both parts of it are liable to the landlord for the rent of each. The agreement that each should pay half of the rent, would afford no evidence that their possessions and rights, as between themselves, were not entirely distinct and settled. It might, or might not, in connexion with other circumstances, be evidence that the parties supposed that their farms contained an equal quantity of land; but their opinions or belief upon that subject cannot vary or affect their legal title to the land itself. Nor can the survey of 1826, though made by the consent of the defendant, operate as a waiver of his legal rights, acquired by possession or otherwise. There was not even a parol agreement to abide by the result of the survey. If there had been, it would have been of no legal force, unless consummated by subsequent acts or deeds. 2 Caines’ R. 198. 9 Johns. R. 61. 15 id. 503. 16 id. 302. The defendant must have judgment.