Jackson ex dem. Beekman v. Haviland , 13 Johns. 229 ( 1816 )

Platt, J.,

delivered the opinion of the court. The plaintiff deduces a regular chain of title under the patent of Kayaderosseras, granted the 2d of November, 1708, to John Tatham and 12 others ; and the defendant also shows a regular deduction of title under the patent of Queensbury, granted the 20th of May, 1762,-to Jacob Haviland and others. Each of the patents (by reason of an interference) covérs the premises in question. On this general view, the plaintiff claiming under the oldest patent would, of course, be entitled to recover. But the defence is rested on two grounds ; 1st. That the conveyance from George Clark to Dirclc Lefferts and Peter Remsen, dated the 14th of March, 1768, under which the plaintiff derives title, was void, as it regards the premises in question, by reason of an adverse possession.

2d. That the plaintiff’s claim is barred by the statute of limitations.

In support of these objections, the defendant proved, that, oii the 9th of November, 1762, a deed of partition was executed by the patentees of Queensborough, whereby lot No. 102., of that patent, (including the premises in question,) was released to Jacob Haviland.

The defendant further proved, that, in 1765, or 1766, Jacob Haviland put a tenant (Asaph Putnam) on that lot, containing 250 acres; that Putnam continued on the lot. for 10 or 12 years, occupying and improving it as tenant under Jacob Haviland; and that the farm has ever since (with the exception of a few years during the war) been successively occupied by Abraham Wing, one Martin, John Eddy, and the defendant, under the title of Jacob Haviland; that there was a log house and barn built by Asaph Putnam, and 40 or 50 acres of the lot were cleared and reduced to cultivation before the revolutionary-war.

- 0n the part of the plaintiff, it is contended,, that his title is protected from the operation of the statute of limitations,- by the judgment in ejectment against John Eddy., . It appears that, in 1788, or 1789, an ejectment suit was commenced in this court .for Dirck Lefferis, ás .lessor of the plaintiff, upon a demise of 14 years, from the. lOtli of January, 1788, against John Eddy? then in possession of the premises ; that, in April term, 1790, a rule for judgment by default, against the casual ejector, was entered ; and that, on the 27th óf May y 1811, a judgment roll was entered up and signed, in that.suit, being nine years after the demise in the declaration had expired. ' .The plaintiff must fail on both points, .

The. possession of Asaph Putnam, on the 14th of March? 1768, (the date of the conveyance to Lefferis and Remspn',). was . óf the whole lot No. 102., in the allotment of Queensbury patent, containing 25Q- acres, as tenant under Jacob Baviland, one of the patentees of Queensbury. He- occupied; exclusively, under that title. No question.had. then arisen as; to the interference óf the patent lines ó# Küy.aderosseras-and Queensburyand I think it would be absurd, as well- as unjust,1 to consider Putnarh, in 176:8,'as a tenant in common with George Clark; There ex-* Isted between them-no-privity of contract or estate, and they claimed under separate and independent titles., I, therefore, consider -it- immaterial; whether George Clark attempted to convey the'whole title in severalty, or only an undivided [share f because no act which he could do towards LefferM and Remsen, could change the character of Putnam’s possession. If that possession were adverse against the whole title of Kayaderosseras, it must be equally so against an undivided share of that title. I. am, also, clearly of opinion, that the proceedings and judgment in the .ejectment suit against John Eddy afford n© support to the plaintiff’s title.

The action of ejectment- is only a possessory remedy in favour of a person having a right of entry ■ it does not-establish and conclude the question of title, as in real actions.- •

- It .is true, the. lessor in ejectment may enter after judgment, without a writ of possession ; and the judgment is evidence of his right of- entry,- as between- the parties and privies, so as to protect him, against an action of trespass, so long as the effect off the judgment continues. But here the lessor of the plaintiff has . waived his. right of. entry under the judgment against .Eddy? and lias slept until the term of the demise has expired ; and, I think, he now stands in the same relation to the defendant as if he had never attempted a legal remedy by the former suit.

In the case of Aslin v. Parkin, (2 Burr. 667, &c.,) Lord Mansfield says, “ a judgment in ejectment, like all others, only concludes the parties as to the subject-matter of it; and, therefore, beyond the time laid in the demise, it proves nothing at all.” 1

A party having title may enter, peaceably, without the aid of the law ; that is, without judgment or suit; and having so entered without force, his possession enures according to his title. The remedy, by ejectment, is intended merely to enable a party having title to enter, by force, under a writ of possession, which he could not lawfully do without such writ. In this case, there has been no actual entry with, or without, writ of possession. The lessor of the plaintiff might have availed himself of the arm of the law to put him in possession ; but he neglected to do so, until the authority for that purpose expired ; and he is now in the same predicament as if that authority had never existed.

I have no doubt, that the possession of the defendant, and those under whom he claims, has been adverse ever since its commencement. On every ground, therefore, the defendant is entitled to judgment.