Williams v. Ballance

Caton, C. J. That the patent to Ballance was a sufficient title to satisfy the requirement of the statute of limitations of 1835, we have already decided in the case of Lender v. Kidder, ante, p. 49, and the only remaining question is, whether the defendant had the possession required by the statute under this title. The patent is for the South-West fractional quarter of Section nine, in Town eight North, of Range eight East of the third meridian, and was issued in January, 1838. As early as 1832, Ballance made a claim to this fraction, and commenced making improvements, but resided on an adjoining quarter most of the time till 1844, when he moved into a new house he had built on the fraction. In the meantime he had laid out the fraction into town lots, and leased the one in question to Cole, who has, by himself or sub-tenants, occupied the premises, under that lease, as ténants of Ballance, ever since. Did Ballance occupy the premises, described in the patent, since 1844, by actual residence thereon ? The fact simply is that he did, but he did not reside upon every square yard of the premises, nor upon the particular lot. Nor was it necessary. He resided upon the legal subdivision described in his patent, the evidence of his title, and possessed and occupied it by himself and tenants. We think the laying out the land into town lots did not deprive him of the benefit of the statute of limitations of 1835, as to all the fractional quarter except the particular lot on which his house stood. He had a right to divide it into as many lots, or portions, or divisions, as he pleased, and put a separate tenant on each, and their occupancy would be his possession, and the law only required him to possess and reside upon the premises claimed by his title papers, but the law does not say upon what portion he should reside, and above all, it does not declare that he should reside upon every portion of it. We entertain no doubt that the possession of, and residence upon, this fractional quarter section, were sufficient to" satisfy the requirements of the statute, and the judgment must be affirmed. Judgment' affirmed.