Doe ex dem. Pearsal v. Thorp

The Court permitted the defendant to proceed with parol proof. Upon which the Chief Justice said that he concurred, because such had been the precedents in this Court. He was unwilling, therefore, to surprise the party, by altering the decisions at the moment of trial. He did not, however, see the distinction on which the decisions in this case were founded. It was true that the possession of land might be transferred without deed, but it might be also by deed; and if it be made by deed, the deed will prove it, and is surely better evidence than parol proof, according to the general rule of evidence, founded on the soundest principles. If the transfer was by deed, the deed, as in other cases, ought to be produced. It might also be important in ascertaining how much was possessed under such transfer. The defendant failed in proving that, Howlet possessed the premises in the year 1785, and the Jury found a verdict for the plaintiff. Defendant entered a review. On the trial of this action upon the review the next term, the plaintiff having, as on the former trial, shewn a title to the lot in question, the defendant relied on the statute of limitation, passed the '27th day of October, 1785. , To bring the case within the statute of limitations, the defendant proved that one Howlet, having purchased the lot in question of one Walbridge, went into possession in the month of October, 1785, before the 27th day of the month, and cleared one acre. The defendant also made out a regular chain of title from Walbridge to himself, and that the possession had accompanied the title. Hitchcock, for the plaintiff, contended that the defendant had at [94] mast acquired a title to the acre only which he had cleared, and that the plaintiff was entitled to recover the remaining part of the lot. D. Chipman, for defendant, admitted that if Howlet had gone into possession of the lot without any purchase or claim, and made improvements on one acre only, he could not hold by the statute of limitations more than that acre, and possibly not that, as it might not appear that his possession was adverse to the plaintiff’s title. But since he purchased the whole lot, and went into possession under the purchase, his possession of a part, was a possession of the whole, adverse to the plaintiff’s title. The Court decided, that as the defendant purchased the whole lot, and went into possession under such purchase, he was, in contemplation of law, in possession of the whole lot. Verdict for the defendant. Note —As a judgment in an action of ejectment, was not, at that time, a bar to another action of ejectment for the same land, the plaintiff brought an action of ejectment for the same lot, before the Circuit Court holden by Judges Patterson and Paine. On trial of tiro action at May term, 1799, the evidence was the sains as on the last trial before (lie Supreme Court, and the only question was whether the defendant was entitled to the whole lot by the statute of limitations, or, to the acre only which he liad cleared. The Court decided that the defendant’s possession of the one acre, under a purchase of the whole lot, was a possession of the whole lot, and the defendant hada vprdict.