Clark v. Vaughan

Hosmer, Ch. J. I shall express no opinion on the validity of the deed of partition ; the objections made by the defendant, independent of this consideration, being, in my judgment, unavailing. To the plaintiff’s title it is first objected, that he is barred by the statute of limitations. It is a conclusive reply, that he had no right of entry until the death of his father, Benjamin Clark, in the year 1816 ; which was the year preceding the commencement of the plaintiff’s action. The statute does not operate against a person to whom neglect is not attributable ; nor commence running until after his right of entry accrues. Jackson d. Hardenberg & al. v. Schoonmaker, 4 Johns. Rep. 390. Jackson d. Beckman v. Sellick, & Johns. Rep. 262. It has been said, that the plaintiff is tenant in common with others of the property demanded by him ; and hence it is inferred, that he cannot recover. This objection has no solidity. Where several persons have a joint title to an estate, any one or more of them may sue, without joining the others, and recover against him who has no title. Bush & al. v. Bradley, 4 Day 298. Barrett & ux. v. French, 1 Conn. Rep. 354. Lastly, it is contended, that the defendant is a tenant in common; and that there has been no actual ouster. To this it may be replied, that he was in possession, claiming to hold the estate, by a deed covering the whole of it ; and this was sufficient evidence of his exclusive holding in opposition to [194] the plaintiff’s demand. Besides, the jury were authorized to . / , , J J find an actual ouster. The other Judges were of the same opinion. New trial not to be granted*