William Johnson

“ A claim to support adverse possession must, either actually or constructively, be under a distinct and paramount title. It cannot be inferred where the defendant derives, by immediate conveyance, his title out of the present subsisting right of the plaintiff herself; and in effect exhibits, as here, an inoperative deed to avail as from that very plaintiff. There is no room therefore here for constructive evidence of distinct and paramount claim ”

“ That an actual or constructive possession is necessary at common law to a transmission of right, is incontrovertible. It is seen in the English doctrine of the necessity of an heir's entering in order to transmit to his heirs: but whatever be the English doctrine and that of other states, as to the right of election to stand disseised or not; it is certain that the New York courts have denied that right, both as to devises and common law conveyances, without the aid of a statute repealing the common law. ”

“ It is not enough that the one tenant in common does acts, as well as conceives plans inconsistent with the acknowledgement of a concurrent possessory right in the other tenant; but if those acts conclusively indicate the claim of sole possession, they must, to serve as proof of adverse possession, be brought actually or constructively to the knowledge of the other tenant. Where was the notice here to the plaintiff that the defendant pretended to a higher possessory right than the deed legally imparted; which was only to the extent of Mrs Evans's interest? ”

“ Ross, the Chief Justice says, 'that one tenant in common may oust his co-tenant, and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act that can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession. ”

“ This then is, as to the plaintiff's interest, a conveyance by one having no title, to a third person, who enters under that conveyance. The fact of Potter's possession is distinctly affirmed: and whether by actual forcible ouster, or by a peaceable possession acquired by fraud; the law holds him to be a disseisor. The first alternative makes him so in terms; and the second is an old, but well settled doctrine. Such is the case in Roll's Abridgement, of a husband and wife, joint tenants in fee; the husband commits treason, and the king seizes the land. ”

“ The lessor of the plaintiff is entitled to no favour against such a length of possession; nor on the face of the case. Sir Charles Gould clearly had power to sell her trust interest, and to expend the proceeds for her education and support. It is to be presumed that he performed his duty faithfully. He had power to appoint an attorney here, to receive the money if Schuyler should sell under John Bradstreet's will. The only technical informality in the defendant's title is, that Sir Charles Gould could not sell by attorney. ”

“ It is not pretended that there cannot be adverse possession where a defendant exhibits a deed from one who, so far as he has a right, derives his title from the same source remotely whence the plaintiff's is derived. ”

“ Fraud is no exception to the operation of the statute of limitations, after it has once been discovered by the person against whom it is to act; but the hostile purpose under the fraud must be known before the statute can begin to apply. The same principle of notice should obtain in case of all adverse possession, where a fraud would be implied in meditating an exclusive possession. When is this purpose of the defendant to be considered as first notified to this plaintiff? If the principles of law as to the presumption attending entries with some or no title, be as we have represented them ”

“ In this case there can be no presumption of a claim of possession by Potter, under a title distinct from the plaintiff's, or paramount to it: because the recitals of the deed exhibited by the defendant acknowledge the plaintiff's title. Where evidence is expressly offered by a party to one effect, presumptions are not allowed to any other point of fact than that which the party himself has by his evidence prescribed. ”

“ Rights accruing under acts of limitations are recognized, in terms, as prim a facie originating in wrong, although really among the best protections of right: and if any one who can commit a disseisin may claim under an adverse possession, it is not easy to preclude any one. An infant, a feme covert, a joint tenant in common, a guardian, and even one getting possession by fraud, may be a disseisor. ”

“ Clarke, 4 Peters, 504, it is distinctly intimated, that a possession may be adverse, wherever an outser may be presumed: and also unanimously ruled, that it may be adverse, and maintain a bar under the statute, even where ouster is in terms repelled, and not to be presumed from the very circumstances of the case. The words of the court are, 'a vendee in fee derives his title from the vendor: but his title, though derivative, is adverse to that of the vendor. He enters and holds possession for himself, and not for the vendor. ”

“ Lord Coke says 'a disseisin is when one enters intending to usurp the possession, and to oust another of his freehold: and therefore querendum est a judice quo animo hoc fecerit, why he entered and intruded.' So the whole inquiry is reduced to the fact of entering, and the intention to usurp possession. These are the elements of actual disseisin; and yet we have seen that one may become a disseisor, though entering peaceably under a void deed, or a void feoffment, or by fraud ”

“ In taking his deed, he is to be deemed to have taken it in hostility to Schuyler as legal owner, in his own right, and for his own use.
But if the recitals are to impute notice to him of the interest of the other cestui qui trusts, it would only raise in equity a constructive trust in Potter, and the remedy of the lessor of the plaintiff has been barred, even in equity, by lapse of time. Potter would become a trustee by implication only. Direct trusts only are saved from the operation of the statute of limitations. ”

“ It is the law of kings, that the fact of possession proves the right of possession; and the idea is thrown out by Blackstone, that it probably passed down from greater to less, until it extended to every man's close. ”

“ Such is emphatically the case with regard to tenancy in common, where actual ouster must be proved either by testimony directly to the fact of a literal expulsion, or by acts accompanied by long and quiet possession, raising the presumption unequivocally and irresistibly, that an actual ouster has taken place. ”

“ The solution of the whole case is, doubtless, that Schuyler conveyed to Edward Goold, who had made the sales, as attorney for Sir Charles Gould, in confirmation of Edward Goold's sales, and to enable him to close the sales.
All has been done in good faith; and the lessor of the plaintiff now claims the land against a bona fide and innocent purchaser, whose money she keeps. ”

“ They apply to adverse possession the common law doctrine on the effect of disseisin; according to which the deed of one disseised of his freehold is held to be utterly void. His freehold was then held to be out of him, to be converted into a right of entry or right of action, and as such no more the subject of legal transfer at common law, than an ordinary chose in action. It being so settled in New York, it is in vain to inquire farther ”

“ Potter and his grantees are not estopped by the recitals of the descriptions in his deed annexed to the names of the grantors of Agatha Evans, as 'one of the daughters and devisees of John Bradstreet,' and Sir Charles Gould, as 'executor of the will of Martha Bradstreet, the other daughter and devisee of John Bradstreet.' These recitals will not narrow the effect of the deed. It expressly conveys the whole land, and cannot be reduced by the descriptions annexed to the names of the grantors. ”

“ Here then we have a conveyance from Schuyler the disseisee, to Agatha Evans, the disseisress, operating in favour of Potter, her grantee; which makes out a common law conveyance. It is seldom that a case in our time savours so much of the black letter; but the course of decisions in New York renders it unavoidable, and the whole course of this argument has been calculated to involve us in it. ”

“ She can only claim any legal interest through the deed of 1794 from Schuyler to Goold. She claims therefore through the legal owner, whose entry is barred. His conveyance to an infant or feme covert would not arrest the running of the statute much less to Goold. Nor was Agatha Evans a tenant in common with Schuyler, in any sense. Potter entered claiming the entire title and the exclusive ownership. Such was the proof, and such it is affirmed to be by the verdict. One tenant in common may oust his co-tenant, and hold in severalty. ”

“ But in finding the quo animo, the jury must of course be left to their own view of the effect and sufficiency of the evidence. Actual ouster is clearly not requisite, either to be presumed or proved; adverse possession may exist without it; and notice, as a fact, may clearly be deduced from circumstances, as well as be positively proved.
The bill of exceptions states, that the defendant proved (that is the word used,) that Potter, 1. Entered under his deed and by virtue thereof. ”

“ Edward Goold being the trustee substituted for Schuyler. It was even less obnoxious than the release of a disseisee to a disseisor, which the law allows. Co. Litt. 369, a. The statute provided for the lawful possessor getting the release of the pretender; but the common law allows also the converse act. The common law and the statute mean only to prevent conveyances under sales of pretended titles, where there is a transmutation of estate and possession. A court of equity would have compelled the conveyance which has here been made from Goold to the plaintiff. ”

“ It was in evidence that Martha Bradstreet, the testatrix, and John and Mary Bradstreet, were deceased.
The will of Elizabeth Livius, deceased, purporting to be executed on the 20th November 1794, was offered in evidence. The court not considering it duly proved, refused to permit it to be read to the jury; to which opinion, an exception was taken by the plaintiff. By that will Mrs Martha Bradstreet, the lessor of the plaintiff, and the daughter of Samuel Bradstreet, the brother of Mrs Livius, then deceased, was made her sole heir. ”

“ Bromagham; in which the bill of exceptions stated that the defendant entered as purchaser of the whole, and held as tenant in severalty, claiming to be sole and exclusive owner.
Again, although it were the true inference of law, nothing can be clearer than that it might be repelled by proof, and that the jury might well find the contrary to be the fact: their verdict in this case in equivalent to such a finding; and for ought that we can judicially know, such a finding may have been sustained by proof of ouster, notice, forcible repulsion, leasing and receiving rents ”

“ Then, if Potter is to be affected with equitable notice, or equitable duties, as being his substitute; why is not Mrs Bradstreet to be similarly affected in the character of his alienee or substitute? If so, she is bound to do whatever Potter might in equity have claimed of Edward Goold; and that is a conveyance in fee, in severalty, of the land in question. But I repeat, this is involving the action of ejectment in subtleties that are unknown to it.
5. But it is insisted, that though the point of tenancy in common be got over, there are others in the case that are to be removed: and 1st. ”

“ A deed was given in evidence by the plaintiff of the following purport. It was executed on the 22d October 1804, at the city of New York, by Edward Goold to Martha Codd, late Martha Bradstreet, wife of Matthew Codd of Utica, of New York. It recites the conveyance executed by Philip Schuyler on the 16th of May 1794, Agatha Evans, and the said Edward Goold, merchant, and attorney to Sir Charles Gould, the only executor of Martha Bradstreet, deceased, a daughter of general Bradstreet, and all the purposes of that indenture ”

“ But the said juror still persisted in his dissent; and stated, that he entertained the same doubts which had been expressed by his fellow juror. Whereupon the said judge directed the said jury to retire and again deliberate upon their verdict. And the said counsel for the said James Jackson did then and there in behalf of the said James Jackson, except to the said last mentioned direction of the said judge. And the jury thereupon retired, and after a short absence returned again into court with a verdict in favour of the said Henry Huntington. ”

“ He who acquires the legal title, with notice of the equity of another, becomes trustee for that other: and the same principles should apply in favour of an equitable tenant in common, where his co-tenant sells his own equitable interest, and the purchaser takes possession of all the land under that title; the title giving him notice of the other equitable interest. 10 Johns. Rep. 496. 2 Caines' Ca. Er. 327. 1 Cranch, 100. 6 Johns. C. R. 403. Sugd. Vend. 487.
It is true, that after the conveyance to Potter, the deed of Schuyler made Goold trustee for the interest of the plaintiff here ”

“ Co. Litt. 245, b. 246, a. 248, a. 327, 2. 327, b. 337, a. 364, b. 388, a.: and this cumulated exception of infancy and coverture is allowed wherever the coverture occurs during the infancy. Co. Litt. 246, b. ”